A :

NAIR SE~VICE SOCJf:TY L'ID. v.

REV. FAtllER K. C. ALEXANi>l!; R & ORS.

February 12, 1968

[M. HIDAYATULLAH, s. M. SIKlll ANO K. s. HEGDE, JJ.]

Specific Relief Act, 1877 (1 of 1877), ss. 8 aild 9-Suit under s. 8 wheiher must he based on proof of title-Jus-tertli-lndian Evidence Act, 1872 (!of 1872), s. 110 presumption under-The Limitation Act, 1963 (36 of 1963) Arts. 64 and 65-Travancore Limikztion Regulation (VI of 110 M.E. s. 32)-Travancore Specific Relief.Act XJ/l of 1115, ss. 7 and 8-(Trcvancore) Regulation IV of 1091-Effect <Jf incurring penalty under Regulations on right to bri111: suit for recovry of pos, ression -of land -Code of Civil Procedure, 1908 (Act 5 of 1908), 0. VJ, r. 11-Amem/.

ment of pkadings-Effect of /aches.

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 inti) 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(l) and tho 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(l) as well. He. asked for restoration of session of L(I) 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 Kuthakapa•tom lease in respect of a party of L(I) as well, .and this portion was marked as L(l)(b), the rest of the suit land being marked as L(l)(a). 1he Society in its written statement did not aver that it was not in possession of L(l)(a). Subsequently, it attempted by argument to limit its defence to L(l)(b) on the !IQis of the 1948 base, But although thesuit was pending iii the trial cou'rt for 17 years no application for amendmen! of the pleadings to this effect was made. The trial court decreed the plaintiff's suit for L(l)(a). In the High Court the Society applied on the last day of the hearing of the aJlpeal, for amendment of its wntten statement limiting its defence to portion L( I )(b), disclaiming all interest in portion L(l)(a). The High Court rejected the application as belated and decreed the suit against the Society in respect of L(l)

(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 folr possession without proof of title was incompetent. On facts the Society's plea was that the plaintiff bad 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 plaintijf's allegations as to his 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 163

time drawn in R_qman Law bet,\\'.en the two kinds of Interdicts namely, tie vi cotidlana and de vi crmilta. In the time of Justinian the two Interdicts de vi ~-ere fused and there was only one action representing both. The appeal to Roman Law, l"as therefore of no .assistance. [)74 B-C]

(iii) The contention that while under s. 9 of the Specific Relief Act a SJ.lit based mereJy on prior possession must be filed within six months, while a suit unper s. 8 based on proof of title may be filed within 12 years can~ not 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 Code of Civil Procedure must be followed. This i_s 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 suis of a civil nature are triable excepting suits of which their cognizance is either expressly or impliedly barred. There is no prohibition expressly barring a suit based on possession alone. [175 F-GJ

Ram Harakh Rai v. Scheodihal Joti, (1893) 15 All. 384, considered.

Mustapha Sahib v. Santha Pillai. l.L.R. 23 Mad. 179, .and Kutta11 Naraya111an v. Thonunan Mat.hcti, (1966) Kerala Law Times 1, applie.d.

A.'

The uniform view of the courts is that if s. 9 of the Specific Relief Act is ultilised the plaintiff need not prove title and the title of the defen dant does not ayaiJ him. When, ho\vever, the period of 6 n1onths has passed questions of title can be raised by the defendent and if he doeiil so the plain- D tiff 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 not be proved unless the defendant can prove one. Articles 64 and 65 of the Indian Limitation Act as recently an1cnded bring out this difference. Article 64 enable, a suit within 12 years fron1 dispossession for poSSession of immovable property bi:.::; ed on possession and not on title, when the . plaintiff while in possession of the property has been disprissessed.

E Article 65 is for posscsion of immovable property or any interest there~ in ba'Sed on title. The amendment is not remedial but declaratory of the Jaw.

In the present case therefore, the plaintiff's suit was competent. fl77 A-DJ .

(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. 'fhis presumption can hardly arise when the fac~ arc known. When the F facts disclose no title, possession alone decides. Jn the present case neither party had title and therefore s. 110 of the Evidence Act was immaterial. [177 E-Fl

(v) The plea of jus terlii on behalf of the appellant could not succeed.

The plea is base<! on Doe v. Barnard (1849] Q.B. 945 which was departed from in Sher v. Whitlock, (1885] 1 Q.B 1 and was overruled in Pe".v v, C/issold. (1907] A.C. 73. The view taken in Perry v. C/issold that a person G in possession of land has a perfectly good title against all the world but the rightful owner_. has been consistentJy accepted in India . and the amendment of the Indian Limitation Act has given approval tothat proposition. Accordifigly the :Society was_ not e}1titl"ed to plead in te. present case that the title to the suit land lay 1n the State. Such a plea 1f 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 isin some one else. The Jaw does not countenance the doct'rine of 'findings keepinw.'. u

[179 H, 182 F-G] Perry v . . Cllsso/d, [1907] AC. 73, Burlin/! v. Read, 11 Q. B. 904 and Smith v. Oxenden. 1 Ch. Ca 25, appJ; ed.

. '

NAIR SERVICE SOCY. V. ALEXANDER (Hidayatul/ah, !.) 165

Dlzc.rani Kllanta Lalliri v. Garbar Ali Khan, 25 M.LJ. 9 P. C. and Afa/u; hir Prasad v. Ja1nuna _Singh, 92 LC. 31 P.C. distinguished,

(vi) The plaintiff's claim could not be refused on ground that he was an offender liable to pZnalty 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 8 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 he described as an action to takeadvantage 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]

C Ho/mas v. Johnson, (1775) 1 Cowpar 341, referred to.

(vii) The Society had failed to amend its pleadings in .respect of suit land marked L(l)(b), and had made a request to the High Court to ailow such amendment only at the eleventh hour. But on thefacts and circunis.!ances 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(l)(b). Without amendment another suit based on the second Kuthaka pattom was inevitable.

There is good authority for the proposition tltat Subsequent events may be. taken note of if they tend to reduce litigation.

This was not one 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(l)(b)]. [187 D-E] .

Ca<:""-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 ncit be regarded as

reroactive from the 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 othe'r documents which are not intended to vary it. [187 G]

(ix) In respect of portion of the land L(l)(a) the appeal must be di1missed. [188 DE]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1632 of 1966.

Appeal from the judgment and decree dated December 23, 1965 of !he Kerala High Court in Appeal Suit No. 406 of 1961.

M. K. Nambiar, N. A. Subramanian, K. Velayudhan Nqir, T. K. Unnithan, Rameshwar Nath and Mahinder Narain, for the appellant.

S. V. Gupte, T. P. Paulooe, B. Dutta, Annamma Alexander, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for respondent No. 1.

The Judgment of the Court was delivered by

Hidayatull8'a, 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, Mave!ikara.

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 ihe 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 tb.e 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 hiin 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 R.egulation IV of 1094

M.E. (L.C. ce No. 112/1100 M.E.) by Paanamathitta 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 011 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 nµmber of persons acting on behalf of the Society trespassed upon and took possession of the suit lands (131.23 acres) in addition to the 160 acres.

The plaintiff, therefore, claimed possession of the excess land from the Soci.ety, 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.

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 16o' acres.

The suit land is in two parts. Ex. L. shows these two parts as L (I )(a) and L 0 .)(b).

The Society had apP.lied for another

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatullah, J.) 167:

Kuthakapattom lease in respect of L(l)(b) and obtained it during the pendency of the suit on March 10, 1948. In this Kl/thakapattom, which is Ex. l, 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 1he 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(l)(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(l)(b) disclaiming alt interest in portion 0 LI 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 compensati.On as claimed by the plaintiff. In the alternative, the Society claimed the value E 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(l) for over 70 years and had improved these lands; (b) whether the first defendant was entitled to possession of any area in hcess of the first K uthakapattom for 12 years; and ( c) whether tlie

trespas~ 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 therival claims for mesne profits and compensation to which refer~

ece has alreay J:>een mde. The suit was dismissed by !he tnal Judge agamst the Society but was decreed against defendants 3 to 6 in respect of land L(t)(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(l )(b) as per plan AZ and that the Society was in possession from the time it entered into possession of 160

.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 that if . the plaintiff was entitled to ecover possession he would also be entitled to mesne profits at the rate of Rs. 3,392/- from tlctober

16, 1939.

The defendants' improvements were estimated at Rs. 53,085;-: Possession of L(l) (a) was decreed with costs, mcsne profits past and future, and compesation 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 witlr 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(I )(a) to defendants 3 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 hil11self mainly on his prior possession and whether the Society could defend itself pleading the title of the Government.

On both these points the dcision of the High Court was in favour of the plaintiff.

In this appeal the first comenuon 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 160 acres in respect of which. G Poramboke case was started against hirn.

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 ejectme.nt 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 H Judge.

In 1928 the plainti~ had filed O.~. 156/1~~3 3:gaint the Government for declaration of possess10n and miunction m respect of the 160 acres of land and L(l)(b), but the suit was

NAIR SERVICE SOCY. V. ALEXANDER (Hidayatullah, J.) 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 temporary 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 Iatteitrespasser (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 no'. filed by the plaintiff's only remedy was to file a suit for ejectrnent pleading and proving his title to the suit land. A mere possessory suit after the expiry of 6 months was not possible. There are other branches of t)Jese main arguments to which reference need notl 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 F of the plaintiff. The High Court, however, remarked that it did not mater when thil, 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, th~ State, it can resist the suit pleading that it was in possession under the authority of the owner and that the possession of the G plaintiff was already disturbed and a suit in ejectment did not . lie against it.

There are; howeve, r, 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(l)(a) 55.47 acres and L(l)(b) 75.76 acres. These

total t9 291.23 acres.

Thesuit.was filed·. to obiain possession

L4 Sup CI/68-12

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(l)(a) and L(l) (b). Although amendments were allowed, no amendment of the written statement to withdraw L(l)(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 bein 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(l)(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 F 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 tlte Land Conservancy case took place on 8-12- 1114 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 treeil 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 n\ore area was taken over

NAIR SERVICE SOCY. V. ALEXANDER (Hidayatul/ah, /.) 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 p<>sSession.

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 (plaintiff) was evicted'. It is, however, to be seen that in the Mahazar (Bxs. 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.

On October 16, the servants of the plaintiff were arrested. Bail. 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 accused were discharged.

The High Court accepted the. plea that the false 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 "Tong.

The Society, however draws attention to several circumstances 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 to plaintiff's application (Ex. 16) on July 28, 1939 that he was dispossessed of suit buildings and requesting that 160 acres be correctly

de~rcated. In oter documents also the plaintiff complained of

evclln from land 11;1 excess o! 160 acres and dispossession from butldrngs. The Society submits that the evidence showed that there were no buildings in 160 acres and that only bamboo huts were to b~ found. . The map Ex. L shows some buildings in L(2). It 1s more likely that as these buildings were close to the western boundary between L(2) and L(l), the plaintiff hoped that he would be abl!" to save them as on admeasurement they :vould . e found outside 160 acres. It may be mentioned that m add1t10n to 160 acres, land 20 acres in extent was further encroachd upon. _This land is shown in plan Ex. BB and represents httle extens10ns all round the 16(,) 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 ore rational

explanation than the contention that as many as 13 i.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 e jectment, based on possession in the character of a trespasser was not maintainable. His contention is that a trespasser's only remedy isto file a suit under s. 32 of the Travancore Limitation Regulation (VI of 1l 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 &11it. 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 withol, it '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 iil pari materia and also i[JSissima verba with 1he Indian Specific Relief Act and are set out below•.

•ACT XIII OF lllS.

"S. 7. Recovtry of specific lmin.ovahle property, A person entitled to the possession of specific immovable property may recover it in themanner pres cribed .bY the Code of _Civil Procedure."

"S. 8. Suit by person dispoJMeSNil of immovable prorty. Jf any person is disp9ssessed without his c; onsent of immovable property otherwise than in due G course of I.aw, 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 shaU bar any person from suf:ig to establish. his title o such property and to recover possession thereof. .

No suit under this section sha11 be brought aa.ainst Our Government.

No appeal shall lie from any order or decree passed in any suit imtituted under this secticr.i. nor shall anv review of any such order or decree be .allowed." ·

" 1

NAIR ~UYICE SOCY. v. ALEXANDER (Hidayatul/ah, !.) 17 3

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 e jectment 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 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 possessionis causa.

•ACT YI OF 1110.

"S. 32. Right to sue for recovery of unlawfully dispossessed property by person so disposSessed or his representative. Jf any person is dispos$essed with out his consent of any house. building or land otherwise than in due coutse of law, he or any person claiming through him may by suit instituted within the period prescribed in Article 2 of the First Scl.iedule appended to this Regula~ tion, recover possession thereof, notwithstanding any other title that may be set up in such suit.

Excep1io11 : Nothing in this section shall bar any person from suing to establish his title to such property and torecover possession thereof.

Bar to sttit against Gover11111e11t 1111der this sectio11. No suit under this section shall be brought against our Government."

INDIAN SPECIFIC RELIEF /\CT.

"S. 8. Recovery of Specific immoveable property. A person entitled to the possession of specific immoveable property may rover it in the manner prescribed by the Code of Civil Procedure."

"S. 9. Sttit by person di.possessed of inunoveable property.

If any person i<> dispossessed without hi~ consent of immoveable property: otherwise than in due course of law, he or any person claiming through him may. by suit. recover possession thereof, notwithsta:iding any other title that maY be set up in such suit.

Nothing in this section. sha,11 bar any per..bn from suing to establish his title to such property and to recover possession thereof.

No suit under this section shaU 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 he

allowed."

174 SUPREMll COUllT REP()f.TS

{1968) 3 S.C.R.

There: werl} two interdicts known as deprecario and de vi. Of the latter two of tbe branches were the Iaterdict de vi cotidiana by whic)J. 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 dam.· 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 distiQ.cti<>l) exists between suits under ss. 9 and 8 of the Specific Relief Act. This is aa 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 ia early Roman Law. In the time of Justinian the two Interdicts de vi were fused a.nd there was only one action represeating both.

Even the clausa about vi clam aut precario disappeared and the restriction toi a year applied to be.th. The appeal to Roman Law does not, therefore, assist us.

We may now consider whether ss. 8 aad 9 are to be distinguished on the lines suggested.

In Mulla's Indiaa 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-

"that is to say by a suit for ejectment 011 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 questioa raised in this appeal is whether a plaintiff who sues for possession an, d for ejectment of the defendant 011 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(') and observed:

"With great respect we ate 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 maaner prescribed by the Code of Civil Procedure, that is to say, by a suit for ejectment 011 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,

It) [1893] JS All. 384.

:<AIR SERVICE SOCY. v. ALEXANDER ( Hidayatullah, I.) 17 5

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 paragrap~ my, 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 tite c~ be raised or. determined.

The obiect of the section 1s clearly to d1SC011rage forcible dispossession and to enable the person dispossessed to 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 intuted 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 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 Spei:ific 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 barred.

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.

Tbefe is, however, good authority for the contrary proposition. In Mustapha Sahib

v. Santha Pillai('), Subramania, Ayyar J. observes :

" .... that !I party ousted by a person who has no better right is, with referenc!l to the person so ousting, entitled to recover by virtue of the possession he had held before

(0 l.L.R. 23 Mad. 179 at 182.

the ouster even though that possession was without any A. title."

;'The rule in question is so firmly established as to render a lengthened discussion about it quite superfiuous. Asher v. Whitlock (L.R. 1 Q.B. 1) and the rulings a of the Judicial Committee in M 11sammat Sundar v. m11ssammat Parbati (16 I.A. 186) and Ismail Arif] 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 canc not 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. point> 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 ill. possession without any title seeks to recover possession of which he has been forcibly deprived by a defendant having good title, he can E 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 K11tta11 Narayaman v.

Thomman Mathai(').

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 period of twelve years as limitaio~ to recov_er possess.ion of immovable propert_y when the plam!I~, w~1le m posses_s1on of the property was dispossessed or had d1scontm.ued posess10n ad the period was calculated from the date of d1spossess1on 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

(I) 1966 Kenlln J.nw Times 1.

.I!

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatullah, J.) 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 disented fom. Te

uniform view of the courts is tbat 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 defend-· ant 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 need not 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 posses-· sion of immovable property based on possession and not on title, when the plafotiff 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 a!So 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, tbe 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 tiile. It is for this reason that Mr.

Nambiar places a greater emphasis on the plea that a suit on \>are 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 un-. founded.

The proposition of law on the subject has been summed up by Salmond on Torts (13th Edn.) at page 172 in the following words:

"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 sufficient to support an action of trespass against such Jiersons.

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

the jus tertii-the right of possession outstanding in some third person--as against the fact of possession in the plaintiff."

The maxim of Jaw is Advers11s extraneous vitiosa possessio prodesse so/et,• and if the plaintiff is in possession the j11s tertii .does not afford a defence. Salmond, however, goes on to say :

"But usually the plaintiff in an actibn of ejectment is not in possession : he relies upon his right to possession, unaccompanied by actual pos5e5sion. 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 te11ii is in practice a good defence. This is sometimes spoken of as the doctrine of Doe v. Barnard [1849] l3 Q.B. 945."

Salmond, however, makes two exceptions to this statement and the second he states thus :

"Probably, if the defe11dant's possession is wrongful as against the plaintiff, the plaintiff may succeed though he cannot show a good title : Doe d. Hughes v. Dyba/I

(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 reeover. 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 h, is 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. C/isso/d [1907] A.C. 73."

Mr. Nambiar strongly relies upon the above exposition of the 'law and upon institutional comments by Wiren ''lbe Plea of ; us

terlii 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

0possession is

• Prior possession i~ a good title of ownership against all who cannot show a better.

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatul/ah, 1.) 179

good against all but the true owner has in any way been departed from.

Perry v. Clisso/d 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 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 uction 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 :o! 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 Jcind 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 reco, ering possession from one who had trespassed against him. The enquiry, thus narrows to 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 s_uch case between trespassers the title

ust be ?'!!standing i~ a third party a defendant will be placed ID a position of dominance.

He has only to evict the prior trespasser and sit pretty pleading that the title is in someone e~. Er!e, J. put it in Burling v. Read (11 0.B. 904) 'parties ~1ght 1magme tat they. acquired some right by merely. intrudng upon land. 1°; the ~1ght;. running up a hut and occupying it beore mmg. Thi~ will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in Perry v. C/issold.

The law does not therefore countenance the doctrine of 'findings keepings'.

Indeed Ashr v. Whitlock [1885j 1 Q.B.

I goes much further.

It laid down as the head-note correctly summarizes :

180 SUPREME COUl.T llEPOR.TS

[1968] 3 S.C.R.

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 enter¢ 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 propo,'>ition 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. Whitlock (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 hardlyconsistent 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 modern textwriters of such weight and authority as Professor 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 Harv. Law Rev. 324 n.")

The differenca 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

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatullah, !.) 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 of land by one who claimed not the righf 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. Barnard 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 Jays down that a person in possessiop 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 Possessio contra omnes velet praeter eur cui ius sit possessionis (He that hath possession hath right against all but him that hath the ve1y right): See Smith v. Oxenden I 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 .37J; Carson (Real Property Statutes 2nd Ed. p. 180); Halsbury (Laws ?f England, Vol. . 24, 3rd Ed. p. 255 f.n.(o); Leake (Property m 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. 21&; 250) hold that Doe v.

J!arnard does _not represent true law.

Winer (to whom I am mdebted for much of the infom1ation) . gives a list .. of other writers w.ho adhere still to.the-view that jus tertii can be pleaded.

Mr. N ambiar pressed upon us the view that we should not accept Perry v. Cllssold. It must be remembered that that case

was argued twice before the Privy Council and on the second occasion Earl . of Hasbury, L. C. Lords Macnaghten, Davey, Robertson, Atkmson, Srr 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 Dhara'ni Kanta Lahiri' v. Garbar Ali Khan, 25 M.L.J. 95 P.C. a sliit

SUPRBMB COURT REPORTS (1968] 3 s.c.R.

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 ati 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 an.d 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 passi:ssion was unlawful to begin with especially when, by grantmg 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

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatullah, J.) Is 3

A to eviction was prescribed, and all crops and other products were liable to confiscation. If eviction was resisted the Pewan could order the arrest and detention in jail of the offender. Section 18 barred Civil Courts from taking any action in respect of orders passed 11!1.der the said Regulation except only when it was established that the land was not government land. The civil court, B 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.

Jn 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 C 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

0 'is the consideration which makes courts deny their assistance to a party. The Society relie\I 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 orit11r 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 qf the defendant, but because they will not lend their aid to such a plaintifi.

These .are general observations applicable to a case ?f illegality on which a party must rely to succeed. In a case m which a plaintiff must rely upon his own illegality the court may refuse

hi~ .ssistance. But there is the other pro1>'?5ition that if a pl am tiff 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 oppasite

party can make unjust enrichment although its own possession is worngful against the claimant. It is to be noticed that the Jaw 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 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 relaioo back to the grant of ihe 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 riot in possession of the case of the plaintiff which he may set up in answer to this case.

This brings us to the q11estion whethr the High Court should have allowed the am_endment sought in 1965. The suit was filed in 1942 and the second Kuthakapattom, was granted in

1948. The last amendment was asked for in 1~58. 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. lllind in approaching the problem.

It is, however, plain that after the grant of Kuthakapattom in 1948 the possession of th_e Society became not only de facto biit 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 ihe authority of the true owner, namely, the State. The former was not open to the Society before ] 948 but the latter was after the grant. . The Soc<iety contends that even if the facts were not pleaded the documents were before the _Court . and the parties knew of them and indeed the plaintilf had himself

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatul/a/1, J.) 185

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.('), Shamu Patter v. Abdul Kadir Ravlllhan and Ors.(') and Kunju Kesavan v. M. M. Philip, l.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

documents he 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 !aches. 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 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 govems 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 ameadment 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('). Mookerjee and Holmwood, JJ. have given the kind of changed circumstances which the courts usually take notice, with illustrations from decided cases.

The

(I) 26 .Dom. 360.

(2) 3S Mad. 637 P.C.

(3) [19641 3 S.C.R. 634.

(4) [l9a7] 6 C.L.J. 74, L4 Sup. Cl/68-13

186 SUPREME COUll.T REPOR.TS

(1968) 3 S.C.R.

judgment in that case has been consistently followed in India.

In Raicharan Manda/ v. Biswanath Manda/(') 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 Cha11dl111ri(') following the dictum of Hughes, C.J., in Patterson v. State of Albama("). In S11ri11der

Kuiilar & Ors: v. Gian Cha11d & Ors. (') 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 oppos.:d the request for amendment.

His objection is mainly based on the ground of delay and !aches. He relies on Gajadhar Mah/011 C

v. Ambika Prasad Tiwari("), R. Sha11n111ga Rajeshwara Seth11pa1hie v. Chidambaram Chettiar(') and Kanda t'. Wagh11(1) in which the Judicial Committee declined amendment before it.

These cases' were differerrt.

Jn 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 runendment 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 H110ung('> he1d 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. I. Leach & Co. v.

Jardine Skinner & Co. (1) Pungonda Hongo11da Patil v. Kalgo111/a Sl1idgonda Plllil(10) and A. K. Gupta and So11s v. Damodar Valley

Corprr.(11) allowed amendments when a fresh claim would have been "time-barred. The cases of 1his Court cannot be said to be dirf in point. They do furnish a guide that amendment is a discrettonary matter and although amendment at a late stage is not to be granted as a matter of course, the court must hear 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 on~ which does not open the case or take the opposite party by surprise.

(0 A.l.R. l91S Cal. 103.

(2) [19-10] F.C.R. 8-1 <tis;.

(3) [1934] 294 U.S. 600 at 607. (-ll [1958] S.C.R. S-18

(S) A.t.R. 192S p.c. 169, 110.

(6) [1938] P.C. m. "

(7) LR. 77 I.A. lS. (Sl 1921 LR. -18 I.A. l-1. 217.

(9) r19s11 s.cR. 4Js. 11oi r19;11 s.c.R. s~5. (1 ll [1966] I S.C.R. 7%.

NAIR SERVICE SOCY. v. ALEXANDER (Hidayatu//ah, /.) 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 pica 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 gainsaid that the plaintiff had himself caused all the documents necessary for the plea to be brought on the record of the case. No doubt plainti!I tried to implead Government with a view to obtaining an injunction but as no notice under 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 !aches 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 >hown above there is good authority in support of the proposition that subsequent events may be taken note of if they tend to reduce

litiation. 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 Societv to show to the court that in addition to possession it has aiso 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 picas of his own having no relation to the grant of the second Kuthakaoattom.

As this amendment is being allowed w~ do not consider it advisable to state at this stage what the implications of the new grant will be under 1he Jaw applicable in 1948.

We are, however, clear for reasons, already given, .that $, e second Kuthakapattom 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 reforence to othe~ documents not intended to vary it. The only' ot11er documents are Ex. 6, the order conferring the second Kuthakapattom and Ex. 7 a demand by the Tahsildar of the Pattom caiculated at the same rate from the date of the first Kuthakaoattom. This follows from the Rules.

Any person in unlawful possession may be compelled under the Rules to pay pattom and

SUPREME COUKT REPORTS


this is what appears to have been order::d. 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 improvements is neither here nor there. That applies between Government and a private partyand 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(l) (a) both in regard to possession and mesne profits and improvements.

As regards L(l )(b) the amendment based on the second Kuthaka pattom 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 wjjl, .of course, be entitled to mesne profits till the date of the grant of the second Kuthakapattom.

F There is no dou'bt that the Society was wrongly advised and allowed the question of amendment to be delayed. At the same time by not allowing the amendment the plaintiff forces the issue regarding possession of L(l)(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 fitst instance G 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 ihe case is being sent to the trial court for further trial.

G.C.

Appeal a/lowed in part 'and case remanded.