JUDGMENT
Sankarasubban, J.
1. This appeal is filed against the judgment and decree in O.S.No. 296 of 1979 on the file of the Sub Court, Palakkad. Appellant is the plaintiff in the suit. The suit was filed for a decree directing the defendants to pay a total amount of Rs. 21,19,847.20 as shown in the plaint with future interest and costs and for granting other reliefs.
2. The averments in the plaint are as follows : Plaintiffs, Emerald Valley Estate Limited, is a limited Company incorporated under the Indian Companies Act having its registered office at Badaguli in Mysore State. Defendants are the State of Kerala, The Chief Conservator of Forests and the Divisional Forest Officer, Nemmara. According to the plaintiff, a total extent of 486.63 acres of land in Pothundi Village, Chittur Taluk, Palakkad District had been leased out by the erstwhile Cochin Government on various dates and by various deeds mentioned in paragraph 1 of the plaint. The interest of the lessees under all these leases came to vest in Miraflores Estate (Private) Limited as per two sale deeds Nos. 284/1112 and 707/1124 and the lessees and the assignees were in undisputed possession of the properties covered by the leases. The assets and liabilities of Miraflores Estates (Private) Limited were taken over by the plaintiff-Company under a scheme of amalgamation sanctioned by the Madras High Court as per order dated 2-11-1962 in C.P.No. 36 of 1962. Thus, the plaintiff became the assignee of the leasehold properties and has been in continuous possession of the properties ever since.
3. Further contention of the plaintiff is that the original lessees had occupied more extent than what was covered by the lease deed under the bona fide belief that they were covered by the leasehold. The area so occupied was planted with cardamom and coffee and the plaintiff and their predeces-sor-in-interest were in undisputed possession and enjoyment of the area so occupied. Thus, the total area occupied including the area as per the lease comes to 520 acres. It is further stated that the areas covered by the 5 leases are continguous area.
4. In the year 1968, land conservancy proceedings were initiated against the plaintiff on the allegation that the plaintiff-Company was in unauthorised occupation of a portion of Government reserved forests. It was claimed that the encroachment extends to 215 acres.
5. Plaintiff filed O.P.No. 2767 of 1962 challenging the land conservancy proceedings. In the meanwhile, the Forest Authorities took up a stand that the Company was not entitled to transport the cardamom raised in the estate without obtaining permit under the provisions of the Forest Act. Since the Company was not being granted permits for the transportation of cardamom, O.P. No. 3101 of 1976 was filed for appropriate reliefs. O.P.No. 4558 of 1976 was filed by the Company to prevent forcible eviction by the officers of the State from the area alleged to be encroached upon. There was an interim injunction passed by this Court in the Original petition. The Original Petitions were finally disposed of by this Court. This Court was of the view that the question whether the Company was in unlawful occupation of any land and if so, what was the extent of unauthorised occupation are matters which require an investigation into the disputed questions of fact and so relegated the parties to a suit.
6. Plaintiff submits that the area which
the officers of the State Government took forcible possession under Section 66 of the Forest Act is really included in the five leaseholds. According to the plaintiff, this will be clear if an identification is made of the area covered by the five leaseholds keeping in mind the important fact that the area leased by the Government was really contiguous area without pockets of reserve forests. Thus, the case of the plaintiff is that 215.10 acres of land forcibly taken possession by the State Government were really included in the five lease deeds. The action of the officers in forcibly evicting the Company was totally illegal. The Forest Officers acted arbitrarily and illegally. The right of the plaintiff-Company over the estate was transferred in favour of the Firm, M/s. Miraflores Estate under a registered document dated 29-11-1977. The sale was preceded by an agreement dated 8-10-1977. Thus, at present, the plaintiff have no title over the property. But, the plaintiff submits that the right to. the income from the property up to the date of the agreement belongs to the plaintiff-Company and the said right had not been transferred under the sale deed. The entire income collected by the officers of the Government from the date of possession up to 8-10-1977, the date of agreement, should be paid to the plaintiff.
7. Further case of the plaintiff is that out of the area taken possession by the Government, an extent of 190 acres was planted with cardamom and about an extent of 25 acres was planted with coffee. According to the plaintiff, a minimum quantity of 8 tons of cardamom and 16 tons of coffee could be obtained from the area with reasonable diligence. The value of the cardamom at the relevant time was not less than Rs. 150/-per kilogram and the value of coffee Rs. 12,500/- per ton. Hence, the plaintiff lost a minimum of Rs. 12 lakhs for the cardamom crop and Rs. 2 lakhs for the coffee crop. Plaintiff is entitled to get this amount from the defendants by way of profits and by way of damages. Plaintiff also submits it is also entitled to get an amount of Rs. 1,39,847.20 by way of cultivation expenses. Further contention of the plaintiff is with regard to the fact that the cardamom collected by the plaintiff could not be transported because of the delay in issuing permits. The total loss occasioned has been estimated at Rs. 5,80,000/-. The case of the plaintiff is that the entire action resorted to
by the Officers under the defendants is illegal, without jurisdiction and mala fide. Notice under Section 80 of the Code of Civil Procedure was issued by the plaintiff’s counsel to the defendants on 25-1-1979. The notice was duly served on the defendants, but no reply has been sent by the defendants. Hence, the suit was filed.
8. Written statement has been filed by defendants 2 and 3 in the suit. The lease of an extent of 486.63 acres of property in Pothundi Village, Chittur Taluk, Palakkad District is admitted. The lessees were aware of the leased area and its identity and hence, there was no question of the lessee occupying the other land under the impression that they formed part of the leased area. Survey of the property was done by the Forest Department, ih 1963. It was revealed that the plaintiff was in possession of more than the leased area. The extent of encroached area was ultimately found to be 250.39 acres, The initiation of the land conservancy proceedings and also the filing of the Original Petition are admitted. In paragraph 7 of the written statement, it is stated that the plaintiff filed O.P.No. 4558 of 1976 against eviction. In September, 1976, the Department lawfully resumed an extent of 142.39 acres of forest land when the plaintiff obtained a stay of eviction. Out of the resumed 142.39 acres, there existed cardamom and coffee plantation only on an extent of 38.42 acres. The yield therefrom taken by the Government was sold after due publication in the Gazette. The particulars regarding the quantity obtained and the price fetched are properly accounted for in the records. Plaintiff has no manner of right over the crops. The allegation that cardamom collected by the plaintiff could not be transported and sold in due season on account of the failure of the officers to issue necessary permits is without any basis. Permits were denied only because the plaintiff refused to furnish the necessary particulars regarding the source of cardamom as required by the Forest Produce Transit Rules. There is no illegality, irregularity or mala fide on the part of the police. It is further stated that the plaintiff is not entitled to any relief.
9. On the basis of the above pleadings, the Court below raised as many as 10 issues. On behalf of the plaintiffs, PWs. 1 to 4 were examined and Exts. A1 to A42 were marked.
On behalf of defendants DWs. 1 and 2 were examined and Exts. B1 to B10 were marked. Exts. C1 to C4 are Court Exhibits. Issue No. 2 was whether the land was within the leasehold and the plaintiff and predecessors were in bona fide occupation. Court below was not satisfied with the identification of the property as per the lease deed. Ext. A37 and Ext. C4 were relied on by the plaintiff in the Court below. Ext. A37 is the blue print plan and Ext. C4 is the plan prepared by the Commissioner. It has come in evidence that Ext. C2 and Ext. C4 plants were prepared on the basis of the instruction of the plaintiff. From the evidence of PW4, it is clear that the Commissioner has not identified the property. According to the plaintiff, the evicted portion comes within the property covered by the lease deed. But for this, the property covered by the lease deeds have to be identified. Ext. A37 and Ext. C4 are not of any help to the plaintiff.
10. Hence, when the appeal was taken up for hearing on 11-11-1997, a Bench consisting of B.M. Thulasidas and K.V. Sankaranarayanan, JJ. were of the view that the reports and plans submitted by the Commissioner in the lower Court were not useful, because the extent of the property shown was as per the lease deeds and they have been identified in terms of the boundaries shown by the plaintiff to the Commissioner. The property was not identified on the basis of Ext. A1. Their Lordships wanted the area from which cardamom and coffee were alleged to have been taken marked and identified separately. For this purpose, two Advocate Commissioners were appointed and the Court had directed the appellant to pay an initial payment of Rs. 10,000/-. But this amount of Rs. 10,000/- was not paid to the Commissioners and hence, the Commissioners did not execute the warrant.
11. When the matter came up for hearing before us, we again enquired with the learned counsel for the appellant whether the appellant was prepared to take out a Commission as per the order dated 11-11-1997. Since there was no positive response from the appellant, we posted the case for argument.
12. Thus, as per evidence, at present the property covered by the lease deeds is not identified and hence it is not possible to come to the conclusion that the evicted property form part of the leasehold property. Learned counsel for the appellant then con-
tended that even if the property belonged to the Government, since his client had bona fide cultivated crops on it, his client is entitled to value of the crops, which were there at the time when the plaintiff was evicted. For this purpose, he relied on Section 51 of the Transfer of Property Act as well as on grounds of equity. Section 51 of the Transfer of Property Act reads thus :
“51. When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the Improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
“When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free Ingress and egress to gather and carry them”.
Learned counsel submits that there is no dispute that the cardamom in the property was planted by the appellant or his predecessor and the crops growing in the property at the time of his eviction belonged to him. Hence, the counsel contended that the appellant is entitled the value of the crops. According to us, the appellant is not entitled to the benefit of Section 51 of the Transfer of Property Act.
13. No doubt, the above section has been the subject of several decided cases. Two conditions must be satisfied before the benefit of Section 51 of the Transfer of Property Act can be attracted ; (1) the person evicted is a transferee and (2) he must have made improvements believing in good faith that he is entitled to the immovable property by virtue of which he had the authority to make improvements. The words “believing in good faith that he is absolutely entitled to” are Important portions of the section. In order to entitle an occupant of land to claim compensation, as a general rule, it is necessary that
he must have held possession under colour of title, his possession must not have been by mere permission of another but adverse to the title of the true owner and he must be under the honest belief that he has secured good title to the property in question and is the owner thereof. It was held by the Supreme Court in Maddanappa v. Chandramma, AIR 1965 SC 1812 at page 1816, thus: “no man who, knowing fully well that he has no title to property, spends money on improving it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person”.
14. So far as the present case is concerned, as already stated, appellant was not able to prove that the property from which it was evicted, was included in the lease deed. If that be so, it cannot be said that he is entitled to get the benefit of Improvement. Here, it is a case where the appellant trespassed into Government property fully know-Ing well that it does not belong to it and that it is not entitled to the benefit of Section 51. Learned counsel for the appellant then submitted that the maxim “quidquid plantatur solo solo cedit” will not apply to India and hence, his client is entitled to the value of the crops raised at the time of eviction. In Thakoor Chunder Poramanlck v. Ram Dhone Buttacharjee, (1866) Suth 6 WR 228, Barnes Peacock, C. J. observed as follows : “We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner. ….”. Further in Ramsden v. Dyson, (1865-66) 1 HL 129 at page 140, Lord Cranworth L.C, observed thus : “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 ex
pending 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”. To the same effect is the decision reported in Parameshwaran Nadar
Chellappan Nadar v. Parameshwaran Pillai
Krishnan Nair, 1963 Ker LT 750 : (AIR 1963
Kerala 297).
15. Thus, even for the purpose of invoking equitable jurisdiction, the appellant has to prove that it had the semblance of title over the property, that it can Construct building and that it can make improvements on it. Appellant has not been able to prove anything. Learned counsel for the appellant relied on the decision reported in Vallabdas Narainji v. Development Officer, Bandra, AIR 1929 PC 163. In that ease, what happened was that the Government resolved to acquire the land belonging to the claimant under the Land Acquisition Act and by arrangement with the suitdars took possession of such land. Government proceeded to erect certain building on the land without the necessary notification under the Land Acquisition Act. After publication was made, the question arose whether the claimant was entitled to compensation for the building standing on the property. In dealing with this contention, the Privy Council held that the maxim “quidquid plantatur solo solo cedit” does not apply to India. Then the question arose whether at the time when the building was erected, Government was a trespasser. It was found in that case that the Government Officials were in possession not as mere trespasser, but under such colour of title that the building erected by them on the land ought not to be included in the valuation as having become the property of the landowner”. As a matter of fact, the above decision came for consideration before the Supreme Court in the decision reported in K. C. Alexander v. State of Kerala, AIR 1973 SC 2498. The Supreme Court held in paragraph 13 held as follows : “This case does not support the contention that a mere trespasser who has deliberately and wrongfully, contrary to the provisions of Section 5 of the Act, entered upon another’s land which makes such an act even punishable under Section 6 thereof, is entitled to compensation for the trees planted by him on the
land”. In the Supreme Court case, it was held that a trespasser to Government land is not entitled to compensation. So far as the present case is concerned, it is governed by Section 66 of the Kerala Forest Act. Section 66 of the Kerala Forest Act states as follows :
“66. Power to prevent commission of offence:– Every Forest Officer and Police Officer shall prevent, and may interfere for the purpose of preventing the commission of any forest offence and shall have power to evict all encroachers and squatters from Reserved Forests or other lands under the control of the Forest Department and to confiscate or demolish any sheds or other structures put up in such lands. Forest Officers shall have the powers of the Police Officers for the purposes of investigation or prevention of forest offences and the collection of evidence”.
Under Section 66 of the Kerala Forest Act, Forest Officer has the power to evict all encroachers and squatters from reserved forests or other lands under the control of the Forest Department and to confiscate or demolish any sheds or other structures put up in such lands. Thus, power is given to Forest Officials to confiscate or demolish any sheds or other structures and to evict encroachers.
16. Thus, appellant has not been successful in showing that it is entitled to compensation for the crops, which were there in the property at the time of eviction. There is nothing on record to show that the land which has been trespassed forms part of the leasehold.
17. In the above circumstances, we are of the view that the appellant is not entitled to succeed. No other points arise for our consideration. Appeal is dismissed. No costs.