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TMI Blog1965 (12) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... (i)(b) is the land in respect of which it has been dismissed. Adjoinine the suit land to the east is the land marked L(2) in Ext. L, the true area of which has been found by the lower court to be 172.38 acres but which has been referred to by the witnesses as the 160 acre land, that being the area given in some of the documents marked in the case. The suit land and the 160 acres land lie in Survey Numbers 780/1 and 780/2 of Ranni Village, very extensive survey fields together having an area of about 8000 acres. The entire land comprised in these two survey fields is admittedly forest poromboke belonging to the Government. But, admittedly again, the plaintiff was in possession of the suit land as also of the 160 acres land up to the end of the year 1114 M.E. (1938-39 A.D.), whether for over 70 years as alleged by the plaintiff, or only for a much shorter period as contended by the 1st defendant Society (the only contesting defendant) is a matter of no moment since the plaintiff claims only a possessory and not a prescriptive title. In the year 1100 (1924-25) the Government initiated proceedings under the Travancore Land Conservancy Act, L. C. Case No. 112 of 1100, in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds with mesne profits past and future, and in case the court round that waste had been committed, compensation for such waste?. 3. The kuthakapattam of 1115 (1939-10) of the 160 acres land in favour of the 1st defendant was for a term of 12 years. Ext. VI dated 10-3-1948, a letter addressed by the Government to the President of the 1st defendant Society states that Government were pleased to sanction a lease of the entire area of 256.13 acres in the occupation of the 1st defendant without any limit of time on an animal pattam of ₹ 3-16-0 per acre and that the 1st defendant was to pay arrears of pattam at the above rate for the entire area from the dale of its occupation, i.e. from 1115 (1939-40). Ext. I (which bears no date) is the kuthakapattam deed executed in pursuance of this sanction, and it is not disputed that it comprises the 160 acres land as also that part of the suit property (namely, plot L(i)(b), 75.76 acres in extent) in respect of which the suit has been dismissed. No plea based on this title acquired subsequent to the suit was however taken by the 1st defendant although, as late as 3-10-1958, more than ten years later, it filed an amended written statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question is whether the plaintiff is entitled to a decree for possession, mesne profits and compensation for waste against the 1st defendant as well -- and that in respect of the entire property in suit. His contention is that he is, on the strength of his possessory title, the 1st defendant being a mere trespasser, whether it be that, as he avers he was forcibly dispossessed by the 1st defendant, or whether it be, as the 1st defendant alleges, the dispossession was by the true owner, namely, the Government, the 1st defendant entering into possession only after that. 7. We shall first consider the question of recovery of possession. As we have seen, it is the admitted case that the plaintiff was in possession of the suit property for a number of years up to the end of the year 1114 (1938-39). The court below has found that he was in possession from about 1096 (1920-21). The evidence clearly establishes that he was in possession at least from 1100 (1924-25) and the contrary was not urged either here or in the court below]. But it is contended on behalf of the 1st defendant that the plaintiff being only a trespasser, his right to possession came to an end when he lost possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 473 and 474.) Or, in the words of the Privy Council in Perry v. Clissold, 1907 AC 73 at p. 79, a person in possession of land in the assumed character or owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And the several High Courts are at one in holding that a person in possession, even if he be a mere trespasser, can, on the strength of his possessory title, get back possession from any person, (except the true owner), who dispossesses him, if he brings a suit within the 12 years limited by law -- if he brings it within six months under section 9 of the Specific Relief Act he can recover possession even from the true owner. This view has been affirmed by a division bench of this court in a recent decision not yet reported (S. A. No. 901 of 1961) (Now reported in AIR 1966 Kerala 179) after an exhaustive discussion of authority, both Indian and English, and there is nothing that we can usefully add to what has been there said except perhaps to observe that the High Court of Calcutta which alone had earlier struck a discordant note in Nisa Chand v. Kanchiram Bagani ILR 26 Cal. 579, has fallen int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t erased by the true owner regaining possession. The possessory owner's title continues to exist; only it is an imperfect title which is of no avail against the perfect title of the true owner; but, against the inferior title of any subsequent possessor, it is a good title. Halsbury (Simonds Edition, Vol. 24 paragraph 492 at page 255) says on the authority of Asher v. Whitlock, (1865) 1 QB 1 and 1907 AC 73. If a series of trespassers, adverse to one another and to the rightful owner, take and keep possession of land continuously in succession for various periods, each less than, but exceeding in the whole, twelve years, the rightful owner is barred. The earliest possessor within the twelve years has the best title. The reason why the earliest possessor within the, twelve years is allowed to recover from the latest is that he has a prior and therefore a better title, a title which becomes absolute the moment the title of the rightful owner is barred; it is not that he is entitled to evict the trespasser who dispossessed him and that trespasser the next until the latest is reached; and, therefore, it should make no difference that, in between, there was an interval when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m claim to have been present at the time, may as the plaintiff's men in occupation under him, have given evidence to the same effect. When the 1st defendant applied for a kuthakapattam by Ext. BD dated 26-12-1114 (11-8-1939) shortly after the eviction, it mentioned the area of the land in question as 165 acres and there is evidence to show that rubber quotas for the suit property (in which there were rubber trees) continued to be issued in the name of the plaintiff while Government sought a transfer of the rubber quota only in respect of the trees in the 160 acre plot. In the face of all this, the case of the 1st defendant, in support of which there is no evidence whatsoever, that the eviction was from the suit properly as well, and the evidence of Dw. 1 (elicited by a leading question) that all the property up to the Ponnarivi thodu which forms the western boundary of the suit property was lying vacant, that he was put in possession of it (for and on behalf of the 1st defendant) in Chingam in 1115 as the 160 acres land from which the plaintiff had been evicted and of which the 1st defendant had been granted a kuthakapattam, and that it was only on subsequent measurement that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented the petition, Ext. BO, to the effect that he had no evidence to adduce since his witnesses had all gone over to the side of the accused; and, on the same day, the magistrate made the order Ext, AL discharging the accused in case on the ground that the complainant had no evidence to adduce as also on the ground, not stated in Ext. BO, that the parties had come to terms. According to the plaintiff and the evidence now adduced on his behalf it was on 30-2-1115 (16-10-1939), after all the men folk in occupation of the suit property under the plaintiff had been arrested and taken away in the dacoity case and only the women and children were left, that the 2nd defendant and a large body of men took forcible possession of the suit property after beating and driving away the families in occupation. The nature of the charge in the dacoity case and its history persuade us to believe that it was a case deliberately engineered so as to have the plaintiff's men apprehend and taken away from the suit property and thus facilitate the entry thereon of the 1st defendant's men. We accept the evidence of the witnesses examined by the plaintiff to prove forcible dispossession on 30-2-111 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, only if it is satisfied that the opposite party suffers no prejudice thereby. None of these conditions is here satisfied -- if the plea had been raised perhaps the plaintiff's application to implead the Government might not have been disallowed and he might have been able to plead and prove that he had prescribed against the Government or that the grant in favour of the 1st defendant was otherwise of no avail -- and the decision in Nagubai Ammal v. Shama Rao (S) AIR 1956 SC 593 cited on behalf of the 1st defendant seems to us to be clearly against it. 14. On 14-12-1965, the day on which the hearing of this appeal concluded, the 1st defendant presented an application, C. M. P. No. 8850 of 1965, praying for leave to amend its written statement so as to plead a title founded on Ext. 1. Also so as to disclaim possession of plot L(i)(a) by confining its claim to the 75.76 acres comprised in plot L(i)(b) and to deny that defendants 3 to 6, whom the lower court has found to be in possession of plot L(i)(a), were in possession under it. For reasons we have already stated so far as the former amendment is concerned, and which will soon be apparent so far as the latter is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othe him with a possessory title since he was not in possession in assertion of his own right but only in the expectation of getting a lease from the Government. It should he enough to say that there was no such plea -- nor does it appear that there is any evidence in support of such plea --but we might observe that even if it be that the plaintiff was in possession in the expectation of getting a lease from the Government, all that that can mean is that the possession was not adverse to the Government. As against the 1st defendant, a mere trespasser, it was possession in the plaintiffs own right. 18. Turning next to the question of mesne profits, it should follow from what we have held on the question of possession that the 1st defendant is liable in mesne profits both past and future. The lower court has assessed profits prior to the suit at ₹ 3392 per annum (ignoring annas and pies) and profits subsequent to the suit at ₹ 11034 per annum so far as plot L(i) (b) (in respect of which it dismissed the suit) is concerned. This it did on the basis of the Commissioner's report, Ext. U dated 3-9-1953. On the basis of the Commissioner's report, Ext. BL dated 2-6-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data. Dw. 1 stated in this evidence that the 1st defendant was keeping regular accounts of the income de rived by it from the property from year to year, and, by its order already referred to, the lower court directed the 1st defendant to produce those accounts. That order was ignored and She lower court does not appear to have taken any steps to enforce it. The inference is legitimate that the accounts, if produced, would have shown an income not less than the estimate made by the Commissioner. 20. We might mention that, in computing profits, the lower court and the Commissioners have taken care not to include profits due to improvements made by the 1st defendant. 21. The lower court has observed in paragraph 29 of its judgment that, as against the 1st defendant, the plaintiff would be entitled to mesne profits (if at all) only from the data of tender of the value of the improvements effected by the 1st defendant, which in para. 34 of its judgment, is assessed at ₹ 53085. Apparently it was of the view that the plaintiff was bound to pay the 1st defendant compensation for improvements as a condition precedent to obtaining possession. Here it was clearly wrong, for the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 958. But the plain-tiff is content to receive mesne profits at the rate awarded by the lower court up to the date of the decree of this court. Profits accruing thereafter we leave to be determined by the lower court under Order XX rule 12 of the Code. The profits, we may add, will bear interest at six pet cent per annum from the respective dates of their accrual. 24. There remains only the question of compensation for waste. With regard to this, there was no express allegation of waste in the plaint, but, prayer No. 3 therein was for a decree for compensation for waste, should it be found in the course of the trial that the defendants had destroyed any of the improvements effected by the plaintiff. And, in paragraph 7 of the replication filed by the plaintiff there was the definite allegation that the 1st defendant had destroyed rubber trees, pepper vine, and other plantations made by the plaintiff. 25. No objection was taken to the frame of the prayer tor compensation for waste, that it did not state the precise amount claimed, or that it included, as the court below construed it to include and we have no doubt both sides understood it to include, a claim for waste committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report must therefore be regarded as part of his testimony and the criticism that it is not evidence in this case seems to us unfounded). By a comparison of these reports the lower court has worked out the improvements, trees and other plantations, which were in existence on the suit property in 1112 (1936-37) (when Ext. M was prepared) but which were missing when Exts. U, BL and XIV were prepared, as also the approximate age of these improvements in 1115 (1939-40) when the 1st defendant entered on the land. So far as plot L (i) (a) is concerned it has assessed the value of the missing improvement at ₹ 1,06,411 in accordance with the Commissioner's report, Ext. BL, and, so far as plot L (i) (b) is concerned, a statement has been filed before us by counsel for the plaintiff showing the value of the missing improvements as ₹ 1,00012/- worked out on the same basis. The only criticism advanced against this mode of determining and assessing the waste is that there is no evidence to show that the trees and other improvements in existence in 1112 (1936-37) were in existence in 1115 (1939-40) at the time of the 1st defendant's entry. But, having regard to the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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