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TMI Blog1959 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint till the date of recovery. 2. Both the trial court and the District Judge of South Kanara in the appeal from the judgment of the trial court-- A. S. No. 153 of 1954-- have held that the land belongs to the plaintiff, and that she is entitled to recover the same with mesne profits at ₹ 75/- per year. There is nothing on record to show that these conclusions are in any way incorrect. 3. The courts below have also come to the conclusion--we think quite correctly--that the house on the property was constructed by the defendant with his own funds. The question for determination is whether he has the right to remove the materials of the house in case the plaintiff is not willing to pay him its value. 4. The trial court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable to this country. As stated in Sirkar v. Mahadeva Iyer 1953 KLT 599 : (AIR 1953 Trav-Co. 349) : "What is affixed to the soil belongs to the soil' is not a maxim of general jurisprudence and there is the authority of the Privy Council -- Vallabdas Narainji v. Development Officer, Bandra AIR 1929 SC 163 -- to hold that it does not represent the law of India." 9. In Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee 6 Suth WR 228 (FB), Sir Barnes Peacock said: "We have not been able to find in the laws or customs of this country any traces or the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in 6 Suth WR 228 (FB) and in no way overruled as pointed out by Privy Council in AIR 1929 SC 163 was different as is clear from the statement therein that the defendant, a trespasser, was "at liberty to remove the bricks of his house." 12. In AIR 1929 SC 163 counsel for the respondents whilst contending that his clients could not be considered "mere trespassers" also submitted "that, even if it were so, once it was admitted that the English maxim did not apply, the logical consequence followed that in any case of trespass by building on the lands of another, such trespasser had a right to remove the structure or be paid the value thereof by the owner". The Board did not deal with the matter. Their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an occasion, in Order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would, prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights". 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it did is K.K. Das v. Amina Khatun Bibi,AIR 1940 Cal 356. In that case the husband constructed a building on his wife's land knowing it to be his wife's. The Court said: "The husband never intends in such a case to reserve any right in the structures". We do not understand their Lordships as having been laid down a uniform or unvarying presumption applicable to all such cases. 19. Quite aprat from this, in the absence of the maxim "whatever is affixed to the soil belongs to the soil" the question is not whether the husband intends to "reserve" any right in the structure but whether the structure passed to the wife by any process known to law, for example, by a gift or in pursuance of the arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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