Full Judgment Text
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PETITIONER:
NAIR SERVICE SOCIETY LTD.
Vs.
RESPONDENT:
REV. FATHER K. C. ALEXANDER & ORS.
DATE OF JUDGMENT:
12/02/1968
BENCH:
HIDAYATULLAH, M.
BENCH:
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
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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 tohis 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
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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
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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]
JUDGMENT:
CIVIL APPELLATE- JURISDICTION : 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 res-
pondent 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 posses-
sion 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.
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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
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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 tempo-
rary 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
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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 after thought. 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
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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 circumstan-
ces 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
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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
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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 immovables and utrubi
for moveables. 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 immoreable 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 de vi
catidiana 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 clausa 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 disting-
uished 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--
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"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
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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 triable excepting suits of
which their cognizance is either expressly or impliedly bar-
red. 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
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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 neednot 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
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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
inclosed 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 for ever
extinguished, and the possessory owner
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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 onewho had trespassed
against him. The enquiry, thus narrowsto 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
beoutstanding 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
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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 ofland 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
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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
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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 assis-
tance 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 well-
founded 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 since- it has got a second
Kuthakapattom we must relate it back to the original
dispossession and treat it as a statutory order under the
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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 plaintiff- had himself
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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
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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 circuity 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 the. 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,
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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
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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 in-
junction 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
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person in unlawful possession may be compelled under the
Rules to pay pattom and
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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.
189