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PETITIONER: NAIR SERVICE SOCIETY LTD.

       Vs.

RESPONDENT: REV. FATHER K. C. ALEXANDER & ORS.

DATE OF JUDGMENT: 12/02/1968

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SIKRI, S.M. HEGDE, K.S.

CITATION:  1968 AIR 1165            1968 SCR  (3) 163

ACT: Specific  Relief  Act, 1877 (1 of 1877), ss. 8  and  9--Suit under   s.   8   whether  must  be   based   on   proof   of title--justertii--Indian Evidence Act, 1872 (1 of 1872),  s. 110 presumption under--The Limitation Act, 1963 (36 of 1963) Arts. 64 and 65--Travancore Limitation Regulation (VI of 110 M.E.  s. 32)--Travancore Specific Relief Act XIII  of  1115. ss. 7 and 8--(Travancore)  Regulation IV of 1091--Effect  of incurring  penalty  under Regulations on right to  suit  for recovery of possession of land--Code of Civil Procedure 1908 (Act   5   of   1908),   O    VI,   r.   17--Amendment    of pleadings--Effect of laches.

HEADNOTE: After   a  case  under  the  Travancore   Land   Conservancy Regulation IV of  1094 M.E. the plaintiff was evicted  from 160  acres of Poramboke land.Thereafter in August  1938  the appellant Society applied for a Kuthakapattom lease of  this area  which  was  granted  and  the  Society  entered   into possession  in July 1939. The suit land was adjacent to  the above  land. In the map prepared by the, Court  Commissioner the  suit land was marked as L(1) and the area of 160  acres aforesaid  as L(2). In his suit which was filed in 1942  the plaintiff  alleged  that after entering into  possession  of L(2) the Society in October 1939 through its agents forcibly dispossessed  him of L(1) as well. He asked for  restoration of possession of L(1) and for related relief. The Society in its defence contended that the plaint lands were  Government Reserve   and  that  the  plaintiff  was   dispossessed   by Government  from  these lands when he  was  dispossessed  of L(2). In 1948 the  Society was granted Kuthakapattom  lease in respect of a party of L(1) as well,  and this portion was marked as L (1 ) (b), the rest of the suit land being marked as  L(1) (a). The Society in its written statement  did  not aver   that   it  was  not  in  possession  of   L(1)   (a). Subsequently, it attempted by argument to limit its  defence to L(1) (b) on the basis of the 1948 base, But    although the  suit  was pending in the trial court for  17  years  no application  for amendment of the pleadings to  this  effect was  made. The trial court decreed the plaintiff’s suit  for L(1) (a). In the High Court the Society  applied  on  the

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last day of the hearing of the appeal, for amendment of  its written statement limiting its defence to portion L(1)  (b), disclaiming all interest in portion L(1) (a). The High Court rejected  the  application as belated and decreed  the  suit against  the  Society in respect of L(1) (b)  as  well.  The Society  appealed,  by certificate to this Court.  The  main contention  urged  on  behalf of the Society  based  on  the Travancore  law corresponding to, ss. 8 and 9 of the  Indian Specific Relief Act, was that after the expiry of six months from the date of dispossession a suit for possession without proof of title was incompetent. On facts the Society’s  plea was  that the plaintiff had been evicted by  the  Government from the suit lands at the same time as he was evicted  from L(2). HELD   :  (i)  The  High  Court  accepted  the   plaintiff’s allegations as tohis  forcible  dispossession  from  the, suit  land  by the Society. On examination of  the  evidence there was no reason to depart from the finding of the   High Court. [171 D-E] (ii)  It cannot be said that the distinction between  ss.  8 and  9  of the Indian Specific Relief Act was based  on  the distinction that was at one 164 time drawn in Roman Law between the two kinds of  Interdicts namely,  de vi cotidiana and de vi armada.  In the  time  of Justinian the two Interdicts de vi were fused and there  was only one action representing both.  The appeal to Roman  Law was therefore of no assistance. [174 B-C] (iii)  The contention that while under s. 9 of the  Specific Relief  Act a suit based merely on prior possession must  be filed  within six months, while a suit, under s. 8 based  on proof  of  title  may be filed within  12  years  cannot  be sustained.  Section 8 of the Act does not limit the kinds of suit but only lays down that the procedure laid down by  the Cod-.  of  Civil Procedure must be followed.  This  is  very different from saying that a suit based on possession  alone is incompetent after the expiry of 6 months.  Under s. 9  of the  Code  of Civil Procedure itself all suits  of  a  civil nature are triable excepting suits of which their cognizance is  either  expressly  or impliedly  barred.   There  is  no prohibition  expressly barring it suit based  on  possession alone. [175 F-G] Ram  Harakh  Rai  v. Scheodihal Joti, (1893)  15  All.  384, considered. Mustapha  Sahib  v. Santha Pillai, I.L.R. 23  Mad.  179  and Kuttan Narayaman v. Thomman Mathai, (1966) Kerala Law  Times 1, applied. The  uniform,  view  of the courts is that if s.  9  of  the Specific Relief Act is utilised the plaintiff need not prove title,  and the title of the defendant does not  avail  him. When,  however, the period of 6 months has passed  questions of  title can be raised by the defendent and if he  does  so the  plaintiff  must establish a better title or  fail.   In other words the, right is restricted to possession only in a suit under s. 9 of the Specific Relief Act but that does not bar  a  suit on prior possession within 12 years  and  title need  Pot  be  proved unless the defendant  can  prove  one. Articles 64 and 65 of the Indian Limitation Act as  recently amended  bring  out this difference.  Article 64  enables  a suit  within 12 years from dispossession for  possession  of immovable  property  based on possession and not  on  title, when  the plaintiff while in possession of the property  has been   dispossessed.   Article  65  is  for  possession   of immovable  property or any interest therein based on  title. The amendment is not remedial but declaratory of the  law.In

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the  present  case  therefore,  the  plaintiff’s  suit   was competent.[177 A-D] (iv) The Society could not on the basis of possession  claim a  presumption of title in its favour relying on s.  110  of the Indian Evidence Act.  This presumption can hardly  arise when the facts are known.  When the facts disclose no-title, possession alone decides.  In the present case neither party had  title  and therefore s. 110 of the Evidence.   Act  was immaterial. [177 E-F] (v) The, plea of jus tertii on behalf of the appellant could not  succeed.   The plea is based on Doe v.  Barnard  [1849] Q.B. 945 which was departed from in Sher v. Whitlock, [1885] 1 Q.B I and was overruled in Perry v. Clissold, [1907]  A.C. 73.   The view taken in Perry v. Clissold that a  person  in possession  of land has a perfectly good title  against  all the  world  but the rightful owner,  has  been  consistently accepted in India and the amendment of the Indian Limitation Act has given approval to that proposition.  Accordingly the Society was not entitled to plead in the, present case  that the title to the suit land lay in the State.  Such a plea if allowed  will  always place the defendant in a  position  of dominance.   He has only to evict the prior  trespasser  and sit pretty pleading that the title is in someone else.   The law   does  not  countenance  the  doctrine   of   ’findings keepings’. [179 H, 182 F-G] Perry v. Clissold, [1907] A.C. 73, Burling v. Read, 11 Q. B. 904 and Smith v. Oxenden.  I Ch.  Ca 25, applied. 165 Dharani Khanta Lahiri v. Garbar Ali Khan, 25 M.L.J. 9 P.  C. and  Mahabir  Prasad  v.  Jamuna  Singh,  92  I.C.  31  P.C. distinguished. (vi)  The plaintiff’s claim could not be refused  on  ground that  he was an offender liable to penalty under  Regulation IV  of 1091 M.E. and other connected Regulation  and  rules. The  Regulations were intended to regulate the  relation  of Government and persons but had no bearing upon the relations between  persons claiming to be in possession.  The  penalty under  the Regulations were a fine for  wrongful  occupation and  in no sense a punishment for crime.  The illegality  of possession  was not thus a criminal act and  the.  regaining lost possession could not be described as an action to  take advantage  of  one’s  own  illegal  action.   In  fact   the plaintiff  was  not required to rely  upon  any  illegality, which is the consideration which makes the courts deny their assistance a party. [183 C-D] Holmas v.  Johnson, (1775) 1 Cowpar 341, referred to. (vii)  The  Society  had failed to amend  its  pleadings  in respect of suit land marked L(1) (b), and had made a request to  the  High . Court to allow such amendment  only  at  the eleventh  hour.  But on the facts and circumstances  of  the case  it was desirable, to allow the amendment in  order  to determine the effect of the 1948 lease on the. rights of the parties in L(1) (b) Without amendment another suit based  on the second Kuthakapattom was  inevitable.There    is    good authority for the proposition that subsequent events may be, taken note of if they tend to reduce litigation.This was not on.--  of  those  cases in which  there  was  likelihood  of prolonged  litigation  after remand or in which a  new  case would  begin.  [Case remanded to trial court  to  try  issue arising out of amendment in respect of L(1)(b)]. [187 D-E] Case-Law referred to. (viii)  The exact implications of the  second  Kuthakapattom after  the  amendment of pleadings as allowed were  for  the trial  court to determine but it was clear that  the  second Kuthakapattom could not be regarded as retroactive from  the

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date of the grant of the first Kuthakapattom.  The  document granting  the  1948  lease  did  not  mention  that  it  was retrospective.   A  formal document which has  no  ambiguity cannot  be varied by reference to other documents which  are not intended to vary it. [187 G] (ix)  In respect of portion of the land L(1) (a) the  appeal must be dismissed. [188 D-E]

JUDGMENT: CIVIL  APPELLATE-  JURISDICTION : Civil Appeal No.  1632  of 1966. Appeal from the judgment and decree dated December 23,  1965 of the Kerala High Court in Appeal Suit No.406 of 1961. M.  K. Nambiar, N. A. Subramanian, K., Velayudhan Nair,T. K. Unnithan,  Rameshwar  Nath  and  Mahinder  Narain,  for  the appellant. S. V. Gupte, T. P. Paulose, B. Dutta, Annamma Alexander,  J. B.  Dadachanji., O. C. Mathur and Ravinder Narain, for  res- pondent No .1 166 The Judgment of the Court was delivered by Hidayatullah,  J. This is an appeal by certificate from  the judgment  of  the High Court of Kerala, December  23,  1965, reversing the decree of the Sub-Court, Mavelikara. , By  the judgment  and  decree  under appeal the suit  of  the  first respondent,  Rev.   Father  K.  C.  Alexander  (shortly  the plaintiff)  was  decreed  in respect of the  suit  lands  of which,  he  had sought possession from the  appellant,  Nair Service  Society  Ltd.  (shortly the Society  or  the  first defendant) and some others who are shown as respondents 2 to 6. The facts in this appeal are as follows The plaintiff filed a suit in forma pauperis on October  13, 1942 against the Society, its Kariasthan (Manager) and  four others  for possession of 131.23 acres of land  from  Survey Nos.  780/1 and 780/2 of Rannipakuthy in the former.   State of  Travancore  and for mesne profits past and  future  with compensation for waste.  The suit lands are shown as L(1) on a  map  Ex. L prepared by Commissioners in CMA 206  of  1110 M.E.  and  proved  by  P.W. 10.  The  two  Survey  Nos.  are admittedly   Government  Poramboke  lands.   The   plaintiff claimed  to  be  in possession of these lands  for  over  70 years.  In the year 1100 M.E. a Poramboke case for  evicting him  from an area shown as L(2) measuring 173.38 acres,  but described in the present suit variously as 160, 161 and  165 acres,  was  started under the Travancore  Land  Conservancy Regulation IV of 1094 M.E. (L.C. case No. 112/1100 M.E.)  by Pathanamathitta  Taluk Cutchery.  This land is  conveniently described  as 160 acres and has been so referred to  by  the High Court and the Sub-Court.  The plaintiff was fined under the  Regulations  and was evicted from the 160  acres.   The Society  applied  for Kuthakapattom lease of  this  area  on August  11,  1938.  The lease was granted but has  not  been produced in the case.  It was for 165 acres and the  Society was  admittedly put in possession of it on July 24, 1939  or thereabouts.  The lease was for 12 years.  Plaintiff’s  case was  that on 13/16 October, 1939 a number of persons  acting on behalf Of the.  Society trespassed upon and took  posses- sion of the suit lands (131.23 acres) in addition to the 160 acres.  The plaintiff, therefore, claimed possession of  the excess  land from the Society, its Manager and defendants  3 to  6,  who  were  acting on behalf  of  the  Society.   The plaintiff  also claimed mesne profits and  compensation  for waste.

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The Society contended that the plaint lands were  Government Reserve   and  that  the  plaintiff  was   dispossessed   by Government from these lands when he was dispossessed of  the 160  acres.  The suit land is in two parts.  Ex.   L.  shows these  two  parts as L(1)(a) and L(1)(b).  The  Society  had applied for another 167 Kuthakapattom lease in respect of L (1) (b) and obtained it. during the pendency of the suit on March 10, 1948.  In  this Kuthakapattom, which is Ex. 1, the land is shown as  256.13. acres  and  the  lease  is  made  without  limit  of   time. Simultaneously  a  demand  was made  from  the  Society  for arrears of Pattom at the same rate as for the  Kuthakapattom in  respect of the whole land after setting off  the  amount already  paid  by the Society.  The Society in  its  written statement  did not aver that it was not in possession  of  L (1)  (a) and resisted the suit in regard to the entire  suit lands.   Subsequently it attempted by argument to limit  its defence to L(1) (b) which was additionally granted to it, in the  Kuthakapattom  Ex. 1. Although the suit pended  for  17 years  in  the Sub-Court no application  for  amendment  was made.   The Society asked for amendments several times,  the last being on October 15, 1958.  However, on the last day of hearing of, the appeal in the High Court (December 14, 1965) the  Society  applied  for  an  amendment  of  the   written statement   limiting  its  defence  to  portion   L(1)   (b) disclaiming all interest in portion, L (1) (a) and attempted to plead the grant of the second Kuthakapattom in its favour on March 10, 1948.  The High Court rejected this application by its judgment under appeal and, awarded possession against the  Society  of the entire suit land.  The Society  in  its case  denied the right of the plaintiff to bring a suit  for ejectment  or its liability for compensation as  claimed  by the plaintiff.  In the alternative, the Society claimed  the value, of improvements effected by it, in case the claim  of the   plaintiff  was  decreased  against  it.    The   other defendants remined ex-parte in the suit and did not  appeal. They  have  now been shown as proforma  respondents  by  the Society. The suit went to trial on 13 issues.  The main issues were. (a)  whether  the plaintiff was in possession of lands  L(1) for over 70 years and had improved these lands; (b)  whether the. first defendant was entitled to possession of any  area in  excess of the first Kuthakapattom for 12 years; and  (c) whether the. trespass was on 13/16 October, 1939 or  whether the plaintiff was evicted on July 24, 1939 by the Government from  the suit land in addition to the 160 acres in  respect of  which  action was taken in the  Land  Conservancy  case. Other issues arose from the. rival claims for mesne  profits and  compensation to which reference has already been  made. The  suit  was  dismissed by the. trial  Judge  against  the Society but was decreed against defendants 3 to 6 in respect of  land  L (1)(a) with mesne profits and  compensation  for waste.   The  trial Judge held that the possession  of’  the plaintiff dated back only to 1920-21 and that he was evicted from  portion L (1) (b) as per plan AZ and that the  Society was  in possession from the time it entered into  possession of 160 168 acres.  The trial Judge held that as the land was  Poramboke and the plaintiff has been ousted by Government he could not claim  possession.   The subsequent grant  of  Kuthakapattom (Ex. 1) was not considered relevant and the suit was decided on  the  basis  of the facts existing on  the  date  of  the commencement  of the suit.  The trial Judge,  however,  held

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that if the plaintiff was entitled to recover possession  he would  also be entitled to mesne profits at the rate of  Rs. 3,392/- from October 16,1939.  The defendants’  improvements were  estimated at Rs. 53,085/-.  Possession of L(1)(a)  was decreed  with  costs,  mesne profits past  and  future,  and compensation for waste against defendants 3 to 6. The  plaintiff filed an appeal in forma pauperis.  The  High Court reversed the decree of the trial Judge and decreed  it against  the Society and its Manager ordering possession  of the  entire suit lands with mesne profits past  and  future, and  compensation for any waste.  The High Court  held  that the  Society-had admitted its possession in respect  of  the entire  suit  land and that the grant  of  Kuthakapattom  in respect  of L (1) (a) to, defendants to 6 by the  Government was  immaterial.   The  High Court held  that  the  evidence clearly established that the plaintiff was in possession  of the plaint lands at least from 1924 to 1925 and that it made no  difference  whether the plaintiff was  dispossessed  .on October  16, 1939 as stated in the plaint or July  24,  1939 as .alleged by the Society.  The main controversy, which was decided  by the High Court, was whether the plaintiff  could maintain  a  suit for possession, (apart from  a  possessory suit  under  the Travancore laws analogous to s.  9  of  the Indian  Specific Relief Act) without proof of  title  basing him.  self  mainly on his prior possession and  whether  the Society  could  defend  itself pleading  the  title  of  the Government.   On both these points the decision of the  High Court was in favour of the plaintiff. In  this appeal the first contention of the Society is  that it did not dispossess the plaintiff on October 16, 1939  but on July 24, 1939 when he was evicted from the 1’60 acres  in respect  of  which Poramboke case was started  against  him. According to the Society, if the plaintiff’s possession  was terminated  by  the rightful owner and the Society  got  its possession  from the rightful owner the suit  for  ejectment could not lie.  It may be stated here that the plaintiff had applied  for  an  amendment to implead  Government  but  the amendment  was disallowed by the trial Judge.  In  1928  the plaintiff had filed O.S. 156/1103 against the Government for declaration  of possession and injunction in respect of  the 160 acres of land and L(1)(b), but the suit was 169 dismissed in default and a revision application against  the order  of dismissal was also dismissed by the High Court  of Kerala.  The suit had delayed the Poramboke case as a tempo- rary injunction has been issued against Government.  On  the dismissal  of  that suit the first Kuthakapattom  lease  was granted to the Society.  The next contention of the  Society is  that a suit in ejectment cannot lie wihout title  and  a prior trespasser cannot maintain the suit generally  against the latter trespasser and more particularly in this case  in respect of lands belonging to Government specially when  the latter trespasser (even if it was, one) had the authority of the  true owner either given originally or subsequently  but relating back to the date of the trespass.  The Society also submits  that as trespass on Government land was  prohibited by  law  the plaintiff could not get the assistance  of  the court.   The  Society also contends more  specifically  that there is no true principle of law that possession confers  a good title except against the owner or that possession is  a conclusive  title  against all but the true owner.   In  its submission,  if a possessory suit analogous to s. 9  of  the Indian Specific Relief Act was not filed by the  plaintiff’s only remedy was to, file. a suit for ejectment pleading  and proving his title to the suit land.  A mere possessory  suit

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after  the expiry of 6 months was not possible.   There  are other  branches of these main arguments to  which  reference need  not  be  made  here.   They  will  appear  when  these arguments will be considered. The  first  question to settle is  when  dispossession  took place.   According to the plaintiff he was  dispossessed  on October 16, 1939 and according to the Society plaintiff  was dispossessed  on July 24, 1939 when he was evicted from  160 acres.  The trial Judge accepted the case of the Society and the  High  Court  that of the plaintiff.   The  High  Court, however, remarked that it did not matter when the  plaintiff was first dispossessed.  The difference in dates is insisted upon  by  the  Society  because if  it  can  show  that  the plaintiff  was dispossessed by the true owner,  namely,  the State,  it  can  resist the suit pleading  that  it  was  in possession  under  the authority of the owner and  that  the possession of the plaintiff was already disturbed and a suit in  ejectment did not lie against it.  There  are,  however, several  circumstances which indicate that  the  plaintiff’s case that dispossession took place in October 1939, is true. To  begin with we are concerned with three areas.  The  Land Conservancy case concerned L(2) or 160 acres.  The other two areas  are  L(1) (a) 55.47 acres and L(1) (b)  75.76  acres. These  total to 291.23 acres.  The suit was filed to  obtain possession L4 Sup CI/68-12 170 of 131.23 acres, that is to say, 291-23 acres minus the  160 acres.   The Society attempted to disclaim all  interest  in L(1) (a) and even attempted to deny that defendants 3-6 were in  possession  of it. This was not allowed  for  very  good reasons.   In the written statement no distinction was  made between  L(1) (a) and L (1) (b).  Although  amendments  were allowed,  no amendment of the written statement to  withdraw L(1)(a)  from dispute was asked for.  The attempt  consisted of  oral arguments which the Court did not entertain.   Even in  the  High Court the written statement was sought  to  be amended  as late as December 14, 1965, the last day  of  the arguments.   The  application had two  prayers.   About  the second  of the two prayers we shall say something later  but the  amendment we are dealing with was not only belated  but also  an after thought.  The High Court rightly  points  out that  a defendant, who after trial of the suit for 16  years orally  asks  for  the withdrawal of  an  admission  in  the written  statement, cannot be allowed to do so.   Therefore, the dispute covered the entire 131.23 acres and the  Society was  claiming to be in possession.  The plaint had  asserted that  the  defendants  2-6  were  in  possession  and   that defendant  2  was  acting for the  Society.   In  reply  the Society  claimed  to  be in possession.   It,  however,  led evidence  on  its own behalf that L(1) (a) was  not  in  its possession.   That  could not be considered in view  of  the admission  in the pleadings.  The contrary admission of  the plaintiff  that defendants 3-6 were in possession was  cited before  us  as it was before the High Court.  But  the  High Court has already   given   an  adequate  answer   when   it observes that the plaintiff   only  said he had heard  this. Therefore, we are of opinion  that  the  issue  was   joined between  the plaintiff and the Society with respect  to  the entire suit land. The  alternative  contention  of the  Society  is  that  the plaintiff  was dispossessed by the rightful owner, that  is, the State.  This contention was accepted by the trial  Judge but  rejected by the High Court.  We shall now consider  it. It is an admitted fact that eviction in the Land Conservancy

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case  took place on 8-121114 M.E. corresponding to July  24, 1939.  Since the order was to evict the plaintiff  from  160 acres,  it is fair to assume that he would be  evicted  from that area only.  The Mahazar Ex.  AG, proved by the  village Munsiff   who  was  personally  present,  establishes   that eviction  was  from  160 acres.   The  High  Court  judgment mentions the names of several other witnesses who have  also deposed  in  the same way.  The High Court also  points  out that the rubber quotas from the rubber trees continued to be in  the name of the plaintiff except in 160 acres  in  which the quotas were transferred to the name of Government.   All this  was  very clear evidence.  Further even if  some  more area was taken over 171 from  the  plaintiff, it would be small and not as  much  as 131.23 acres or even 75.76 acres.  It is to be noticed  that the  Society  applied  on August 11, 1939  for  grant  of  a Kuthakapattom  only in respect of 165 acres and this was  on the  basis of possession.  If the Society was in  possession of  291.23  acres, it would not have omitted on  August  11, 1939  to  apply for the additional area  as  well.   Another application  was made for a second Kuthakapattom in  respect of  the additional land on the basis of possession but  only after certain events happened.  On September 29, a complaint (Ex.  AO)  was  made by Phillippose Abraham  (P.W.  8),  the Manager of the plaintiff, that the land was trespassed  upon by  the  Society’s  men who had  harvested  the  paddy.   On October  2,  1939  the  second  defendant  made  a   counter complaint Ex.  AS.  This made a mention of ’land from which, the  1st  accused  (plain-’  tiff)  was  evicted’.   It  is, however, to be seen that in the Mahazar (Exs.  AT, AT-1  and AT-2) the encroached area is shown as 160 acres.  On October 13, 1939 one Krishna Nair made a complaint (Ex.  AH) against plaintiff’s men of beating and dacoity. was delayed and  was only granted on October 20, 1939.On  October 24, 1939  the plaintiff complained of dispossession.The case of  dacoity was virtually withdrawn and the accusedwere discharged. The High Court accepted the plea that thefalse   charge    of dacoity and the arrest were a prelude to dispossession and a ruse  to get the servants of the plaintiff out of  the  way. On  looking  into  the  evidence we  cannot  say  that  this inference is wrong. The Society, however draws attention to several  circumstan- ces  from which it seeks to infer the contrary.  We  do  not think  that  they are cogent enough to  displace  the  other evidence.   We  may, however, refer to  them.   The  Society first refers So plaintiff’s application(Ex. 16) on July  28, 1939  that  he  was  dispossessed  of  suit  buildings   and requesting that 160 acres be correctly demarcated.  In other documents  also  the plaintiff complained of  eviction  from land   in  excess  of  160  acres  and  dispossession   from buildings.   The  Society submits that the  evidence  showed that  there  were no buildings in 160 acres  and  that  only bamboo  huts  were to be found.  The map Ex.  L  shows  some buildings  in  L(2).   It  is  more  likely  that  as  these buildings  were close to the western boundary  between  L(2) and L(1), the plaintiff hoped that he would be able to  save them  as  on admeasurement they would be found  outside  160 acres.   It may be mentioned that in addition to 160  acres, land  20 acres in extent was further encroached upon.   This land  is  shown  in  plan  Ex.  BB  and  represents   little extensions all round the 160 acres.  If this area was  taken into  account  and 160 acres admeasured then,  there  was  a possibility  of the buildings being saved.  This is  a  more rational

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172 explanation than the contention that as many as 131.23 acres were additionally taken in possession when the plaintiff was dispossessed  from  160  acres.   We  have  therefore,   not departed from the finding of the High Court which we find to be sound. Failing on the facts, the Society takes legal objections  to the suit.  According to the learned counsel for the  Society the suit in ejectment, based on possession in the  character of  a  trespasser was not maintainable.  His  contention  is that  a trespasser’s only remedy is to file a suit under  S. 32 of the Travancore Limitation Regulation (VI of 1 1 00) as amended by Regulations IX of 1100 and 1 of 1101, but  within 6  months.  This section corresponds to s. 9 of  the  Indian Specific   Relief  Act.   Now  if  ’dispossession   Was   by Government  the suit could not be filed because there was  a bar  to such a suit.  If dispossession was by the Society  a suit  under’ s. 32 was competent.  The question  is  whether after  the expiry of 6 months a regular suit based on  prior possession without proof of title was maintainable.  This is the  main  contention  ,on  merits  although  it  has   many branches.  We now proceed to consider it. This aspect of the case was argued by Mr. Nambiar with great elaboration  for  a number of days.  The argument  had  many facets  and  it  is  convenient to  deal  with  some  facets separately because they have no inter connection with others and some others together.  ’The main argument is that a suit by  a  trespasser  does not lie  for  ejectment  of  another trespasser after the period of 6 months prescribed by S.  32 of  the  Travancore  Limitation  Act  (VI  of  1100).    The provisions  of the Travancore Specific Relief Act  (XIII  of 1115) are in pari materia and also ipsissima verba with  the Indian Specific Relief Act and are set out below*.                      ACT XIII OF 11 15. "S.  7. RecoveRY of specific immovable property.   A  Person entitled  to the possession of specific  immovable  property may recover it in the manner prescribed by the Code of Civil Procedure." "S. 8. Suit by person dispossessed of immovable property. if any person is dispossessed without his consent of  immovable property  otherwise  than in due course, of law, he  or  any person  claiming through him may be suit recover  Possession thereof,  notwithstanding any other title, that may  be  set ’up in such suit. Nothing  in this Section shall bar any Person from suing  to establish  his  title  to  such  property  and  to   recover Possession thereof. No  appeal shall lie from any order or decree Passed in  any suit instituted under this section. nor shall any review  of any such order or decree be allowed." 173 It  is convenient to refer to the Indian Act.  According  to Mr.  Nambiar  a contrast exists between ss. 8 and 9  of  the Specific Relief Act.  These Sections are reproduced  below*. Mr. Nambiar submits that s. 8 refers to suits for possession other than those under s. 9, and while question of title  is immaterial  in  suits  under s. 9, under s.  8  a  suit  for ejectment must be on the basis of title.  In other words, in a  suit under s. 8 title must be proved by a  plaintiff  but under  S. 9 he need not.  Once the period of six months  has been  lost  a  suit brought within 12  years  for  obtaining possession by ejectment must be based on title and not  bare prior possession alone. In support of this argument Mr. Nambiar refers to Roman  Law of  Interdicts  and  urges that the  same  distinction  also

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existed  there  and  has been borrowed  by  us  through  the English  practice.  We may first clear  this  misconception. Possession  in Roman Law was secured to a possessor  by  two forms of Interdicts--Utipossidetis for immovables and utrubi for  moveables.   But we are not concerned with  these,  but with actions to recover possession which were  compendiously called recuperandae possessions causa.                       *ACT VI OF 1110. "S.   32.   Right  to  site  for  recovery   of   unlawfully dispossessed  property  by  person so  dispossessed  or  his representative.   If any person is dispossessed without  his consent of any house, building or land otherwise than in due course of law, he or any person claiming through him may  by suit instituted within the period prescribed in Article 2 of the  First  Schedule appended to  this  Regulation,  recover possession thereof, notwithstanding any other title that may be set up in such suit. Exception  :  Nothing in this section shall bar  any  person from  suing to establish his title to such property  and  to recover possession thereof. Bar to suit against Government under this section.  No  suit under this section shall be brought against our Government."                 INDIAN SPECIFIC RELIEF ACT. "S.  8. Recovery of Specific immoveable property.  A  person entitled  to the possession of specific immoveable  property may recover it in the manner-prescribed by the Code of Civil Procedure." "S.  9. Suit by person dispossessed of immoreable  property. If  any  person  is  dispossessed  without  big  consent  of immoveable property, otherwise than in due course of law  he or  any person claiming through him may, by’- suit,  recover possession thereof, notwithstanding any other title that may be set tip in such suit. Nothing  in this section shall bar any person from suing  to establish  his  title  to  such  property  and  to   recover possession thereof. No  suit  under this section shall be  brought  against  the Central Government, or any State Government. No  appeal shall lie from any order or decree passed in  any suit instituted under this section. nor shall any review  of any such order or decree be allowed." 174 There were two interdicts known as deprecario and de vi.  Of the  latter  two of the branches were the  Interdict  de  vi catidiana   by which possession was ordered "to be  restored on  an application made within the year where one  had  been ejected  from land by force, provided there had not been  vi clam aut precario from the ejector." The other d evi  armata for  ejection  by armed force, was  without  restriction  of time.   Mr.  Nambiar says that the same  distinction  exists between suits under ss. 9 and 8 of the Specific Relief  Act. This is an ingenious way of explaining his point of view but it does not appear that these principles of Roman Law at all influenced  law making.  These principles were in  vogue  in early  Roman  Law.   In  the  time  of  Justinian  the   two Interdicts  de vi were fused and there was only  one  action representing  both.   Even  the clausa  about  vi  clam  aut precario  disappeared and the restriction to a year  applied to  both.   The appeal to Roman Law  ,does  not,  therefore, assist us. We  may now consider whether ss. 8 and 9 are to be  disting- uished  on the lines suggested.  In Mulla’s Indian  Contract and  Specific  Relief  Acts  there  is  a  commentary  which explains the words ’in the manner prescribed by the Code  of Civil Procedure’ by observing--

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             "that is to say by a suit for ejectment on the               basis  of  title : Lachman  v.  Shambu  Narain               (1911) 33 All. 174." The  question  in that case in the words of the  Full  Bench was-               "The  sole question raised in this  appeal  is               whether  a plaintiff who sues  for  possession               and  for  ejectment of the  defendant  on  the               basis of title and fails to prove his title is               still  entitled  to a  decree  for  possession               under  section 9 of the Specific  Relief  Act,               1877,  if he can prove possession  within  six               months   anterior   to   the   date   of   his               dispossession." In the course of decision the Full Bench dissented from  the earlier  view  in Ram Harakh Rai v.  Sheodihal  Joti(1)  and observed:               "With  great  respect we are unable  to  agree               with this view.  Section 8 of the Act provides               that  a person entitled to the  possession  of               specific immovable property may recover it  in               the  manner  prescribed by the Code  of  Civil               Procedure,  that  is  to say, by  a  suit  for               ejectment  on the basis of title.   Section  9               gives  a  summary remedy to a person  who  has               without  his  consent  been  dispossessed   of               immovable  property,  otherwise  than  in  due               course  of  law, for  recovery  of  possession               without establishing title, (1) [1893] 15 All. 384. 175               provided  that his suit is brought within  six               months  of  the date  of  dispossession.   The               second paragraph of the section provides, that               the person against whom a decree may be passed               under the first paragraph may, notwithstanding               such decree, sue to establish his title and to               recover  possession.   The two  sections  give               alternative  remedies and are in  our  opinion               mutually  exclusive.   If a  suit  is  brought               under section 9 for recovery of possession, no               question of title can be raised or determined.               The  object  of  the  section  is  clearly  to               discourage   forcible  dispossession  and   to               enable  the person dispossessed to  I  recover               possession  by merely proving title, but  that               is  not  his only remedy.  He may,  if  he  so               chooses,  bring a suit for possession on  the,               basis of his title.  But we do not think  that               he can combine both remedies in the same  suit               and  that he can get a decree  for  possession               even  if  he  fails to prove  title.   Such  a               combination  would,  to say the least  of  it,               result  in  anomaly and inconvenience.   In  a               suit  under section 9 no question of title  is               to  be  determined, but that question  may  be               tried  in  another suit instituted  after  the               decree   in’  that  suit.   If  a  claim   for               establishment of title can be combined with  a               claim under section 9, the court will have  to               grant a decree for possession or dispossession               being proved, in spite of its finding that the               plaintiff  had no title and that title was  in               the defendant." We  agree as to a part of the reasoning but with respect  we

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cannot  subscribe  to the view that after the  period  of  6 months  is over a suit based on prior possession  alone,  is not possible.  Section 8 of the Specific Relief Act does not limit  the  kinds  of  suit but only  lays  down  that  the, procedure  laid down by the Code of Civil Procedure must  be followed.   This is very different from saying that  a  suit based on possession alone is incompetent after the expiry of 6 months.  Under s. 9 of the Code of Civil Procedure  itself all  suits of a civil nature are triable excepting suits  of which their cognizance is either expressly or impliedly bar- red.   No  prohibition  expressly barring a  suit  based  on possession  alone has been brought to our notice, hence  the added attempt to show an implied prohibition by reason of s. 8  (s. 7 of the Travancore Act) of the Specific Relief  Act. There   is,  however,  good  authority  for   the   contrary proposition.In Mustapha Sahib v.Santha Pillai(1),Subramania, Ayyar J. observes               "......  that a party ousted by a  person  who               has no better right is, with reference to  the               person  so  ousting, entitled  to  recover  by               virtue of the possession he had held before (1) I.L.R. 23 Mad. 179 at 182. 176               the  ouster  even though that  possession  was               without any title."                ................................               "The rule in question is so firmly established               as to render a lengthened discussion about  it               quite superfluous.  Asher v. Whitlock (L.R.  1               Q.B.  1)  and  the  rulings  of  the  Judicial               Committee  in  Musammat  Sundar  v.  mussammat               Parbati  (16  I.A. 186) and  Ismail  Ariff  v.               Mahomed-Ghouse  (20  I.A. 99) not  to  mention               numerous  other decisions here and in  England               to  the same effect, are clear authorities  in               support of the view stated above...... Section               9  of the Specific Relief Act cannot  possibly               be held to take away any remedy available with               reference  to  the  well-recognised   doctrine               expressed in Pollock and Wright on  possession               thus  :-  Possession in law is  a  substantive               right  or interest which exists and has  legal               incidents   and  advantages  apart  from   the               owner’s title (p. 19)". In the same case O’Farell J. points out that               "all  the dictum of the Privy Council in  Wise               v. Ameerunissa Khatoon (7 I.A. 73) appears  to               amount  to is this, that where a plaintiff  in               possession without any title seeks to  recover               possession  of  which  he  has  been  forcibly               deprived by a defendant having good title,  he               can only do so under the provisions of section               9   of  the  Specific  Relief  Act   and   not               otherwise." It  is not necessary to refer to the other authorities  some of  which  are already referred to in  the  _judgment  under appeal  and  in the judgment of the same court  reported  in Kuttan Narayaman v. Thomman Mathai(1).  The last cited  case gives  all the extracts from the leading judgments to  which we  would have liked to refer.  We entirely agree  with  the statement  of the law in the Madras case from which we  have extracted the observations of the learned Judges.  The other cases  on  the subject are collected by Sarkar  on  Evidence under s. 110. The  Limitation Act, before its recent amendment provided  a

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period  of twelve years as limitation to recover  possession of   immovable  property  when  the  plaintiff,   while   in possession   of  the  property  was  dispossessed   or   had discontinued  possession and the period was calculated  from the  date of dispossession or discontinuance.   Mr.  Nambiar argues  that  there  cannot be two  periods  of  limitation, namely, 6 months and 12 years for suits based on  possession alone and that the longer period of limitation (1)  1966 Kerala Law Times 1. 177 requires proof of title by the plaintiff.  We do not  agree. No  doubt there are a few old cases in which this  view  was expressed  but  they  have since been  either  overruled  or dissented  from.  The uniform view of the courts is that  if s.  9 of the Specific Relief Act is utilised  the  plaintiff need not prove title and the title of the defendant does not avail him.  When, however, the period of 6 months has passed questions of title can be raised by the defendant and if  he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to  possession. only  in  a suit under S. 9 of the Specific Relief  Act  but that  does,  not bar a suit on prior  possession  within  12 years  and title neednot be proved unless the defendant  can prove  one.  The present. amended articles 64 and  65  bring out  this difference.  Article 64 enables a suit  within  12 years  from  dispossession,  for  possession  of   immovable property  based  on possession and not on  title,  when  the plaintiff  while  in  possession of the  property  has  been dispossessed.   Article  65 is for possession  of  immovable property  or  any  interest therein  based  on  title.   The amendment  is not remedial but declaratory of the  law.   In our judgment the. suit was competent. Mr.  Nambiar also relies in this connection upon s.  110  of the, Indian Evidence Act and claims that in the case of  the Society there is a presumption of title.  In other words, he relies upon the principle that possession follows title, and that after the expiry of 6 months, the plaintiff must  prove title.  That possession, may prima facie raise a presumption of  title  no one can deny but this presumption  can  hardly arise when the facts are known.  When the facts disclose  no title  in either party, possession alone decides.   In  this case  s.  110  of the Evidence  Act  is  immaterial  because neither  party  had title.  It is for this reason  that  Mr. Nambiar places a greater emphasis on the plea that a suit on bare  possession cannot be maintained after the expiry of  6 months and that the Society has a right to plead jus tertii. The first must be held to be unsubstantial and the second is equally unfounded. The proposition of law on the subject has been summed up  by Salmond on Torts (13th Edn.) at page 172 in the following               "The mere de facto and wrongful possession  of               land  is  a valid title of right  against  all               persons  who  cannot show a  better  title  in                             themselves,  and  is  therefore  suffi cient  to               support  an  action of trespass  against  such               persons.   ’Just  as  a legal  title  to  land               without  the possession of it is  insufficient               for this purpose, so conversely the possession               of it without legal title is enough.  In other               words,  no defendant in an action of  trespass               can plead 178               the   jus  tertii--the  right  of   possession               outstanding  in some third  person-as  against

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             the fact of possession in the plaintiff." The  maxim of law is Adversus extraneous  vitiosa  possessio prodesse  solet,* and if the plaintiff is in possession  the jus  tertii ,does not afford a defence.   Salmond,  however, goes on to say:               "But  usually  the plaintiff in an  action  of               ejectment  is  not in possession :  he  relies               upon his right to possession, unaccompanied by               actual  possession.   In such a case  he  must               recover  by  the strength of  his  own  title,               without  any  regard to the  weakness  of  the               defendant’s.   The result, therefore, is  that               in  action of ejectment the jus tertii  is  in               practice  a good defence.  This  is  sometimes               spoken  of as the doctrine of Doe  v.  Barnard               [1849] 13 Q.B. 945." Salmond, however, makes two exceptions to this statement and the second he states thus               "Probably,  if the defendant’s  possession  is               wrongful   as  against  the   plaintiff,   the               plaintiff may succeed though lie cannot show a               good title : Doe d. Hughes v. Dyball (1829)  3               C  &  P 610; Davision v. Gent (1857) 1 H  &  N               744.   But possession is prima facie  evidence               is  not displaced by proof of title.  If  such               prima facie evidence is not displaced by proof               of title in a third person the plaintiff  with               prior possession,will recover.  So in Asher v.               Whitlock  [(1865) L.R. 1 Q.B. 1] where  a  man               inclosed  waste land and died  without  having               had  20  years’ possession, the  heir  of  his               devisee  was  held  entitled  to  recover   it               against  a person who entered upon it  without               any  title.   This  decision,  although  long,               doubtful, may now be regarded as authoritative               in  consequence of its express recognition  of               the  Judicial Committee in Perry  v.  Clissold               [1907] A.C. 73." Mr. Nambiar strongly relies upon the above exposition of the law  and upon institutional comments by Wiren "The  Plea  of jus  tertii in ejectment" (1925) 41 L.Q.R.  139,  Hargreaves "Terminology and Title in Ejectment (1940) 56 L.Q.R. 376 and Holdsworth’s article in 56 L.Q.R. 479. In  our judgment this involves an incorrect approach to  our problem.   To  express our meaning we may begin  by  reading Perry  v.  Clissold  to  discover  if  the  principle   that possession is *Prior  possession is a good title of ownership against  all who cannot show a better. 179 good  against  all but the true owner has in  any  way  been departed  from.  Perry v. Clissold reaffirmed the  principle by stating quite clearly :               "It  cannot  be  disputed  that  a  person  in               possession of land in the assumed character of               owner  and exercising peaceably  the  ordinary               rights of ownership has a perfectly good title               against all the world but the rightful  owner.               And  if  the  rightful  owner  does  not  come               forward and assert his title by the process of               law  within  the  period  prescribed  by   the               provisions   of  the  statute  of   Limitation               applicable to the case, his right is for  ever               extinguished,   and   the   possessory   owner

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             acquires an absolute title." Therefore, the plaintiff who was peaceably in possession was entitled  to remain in possession and only the  State  could evict him.  The action of the Society was a violent invasion of  his possession and in the law as it stands in India  the plaintiff  could  maintain  a  possessory  suit  under   the provisions  of the Specific Relief Act in which title  would be  immaterial or a suit for possession within 12  years  in which the question of title could be raised.  As this was  a suit  of  latter kind title could be  examined.   But  whose title?  Admittedly neither side could establish title.   The plaintiff  at  least pleaded the statute of  Limitation  and asserted  that  he  had  perfected  his  title  by   adverse possession.  But as he did not join the State in his suit to get  a  declaration, he may be said to have not  rested  his case on an acquired title. His  suit was thus limited  to recovering possession from onewho    had     trespassed against him.  The enquiry, thus narrowsto  this :  did  the Society  have  any  title in itself,  was  it  acting  under authority  express  or implied of the true owner or  was  it just  pleading a title in a third party ? To the  first  two questions we find no difficulty in furnishing an answer.  It is clearly in the negative.  So the only question is whether the defendant could plead that the title was in the State  ? Since in every such case between trespassers the title  must beoutstanding  in  a  third party a  defendant  ’will  be placed in a position of dominance.  He has only to evict the prior  trespasser and sit pretty pleading that the title  is in someone else.  As Erle, J. put it in Burling’ v. Read (11 Q.B.  904) ’parties might imagine that they  acquired-  some right by merely intruding upon land in the night, running up a  hut  and  occupying it before  morning’.   This  will  be subversive  of the fundamental. doctrine which was  accepted always  and  was reaffirmed in Perry V. Clissold.   The  law does  not therefore, countenance the doctrine  of  ’findings keepings’. Indeed Asher v. Whitlock [1885] 1 Q.B. I goes much  further. It laid down as the head-note correctly summarizes 180 A  person  in possession of land without other title  has  a devisable  interest,  and  the  heir  of,  his  devisee  can maintain.  ejectment against a person who had  entered  upon the land cannot show title or possession in any one prior to the  testator.   No doubt as stated by  Lord  Macnagthen  in Perry  v.  Clissold, Doe v. Barnard (supra)  lays  down  the proposition that "if a person having only a possessory title to  land be supplanted in the possession by another who  has himself no better title, and afterwards brings an action  to recover  the  land,  he must fail in case he  shows  in  the course  of the proceedings that the title on which he  seeks to recover was merely possessory".  Lord Macnaghten observes further that it is difficult, if not impossible to reconcile Asher v. Whitlock with Doe v. Barnard and then concludes               "The  judgment of Cockburn, C.J., is clear  on               the  point.  The rest of the  Court  concurred               and it may be observed that one of the members               of the court in Asher v. Whit,lock (Lush,  J.)               had  been counsel for the successful party  in               Doe  v. Barnard.  The conclusion at which  the               court  arrived  in Doe v.  Barnard  is  hardly               consistent  with  the views  of  such  eminent               authorities  on  real  property  law  as   Mr.               Preston  and  Mr., Joshua  Williams-.   It  is               opposed to the opinions of modem  text-writers               of  such  weight and  authority  as  Professor

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             Maitland and Holmes, J.of the Supreme Court               of   the  United  States  (see   articles   by               Professor Maitland in the Law Quarterly Review               Vols.  1, 2 and 4; Holmes, Common Law p.  244;               Professor J. B. Ames in 3 Hary.  Law Rev.  324               n.") The  difference  in the two cases and which  made  Asher  v. White prevail was indicated in that case by Mellor, J. thus               "In Doe v. Barnard the plaintiff did not. rely               on  her  own possession merely, but  showed  a               prior possession in her husband, with whom she               was  unconnected in point of title.  Here  the               first possessor is connected in title with the               plaintiff; for there can be no doubt that  the               testator’s interest was devisable." The  effect of the two cases is that between two  claimants, neither  of  whom  has title in  himself  the  plaintiff  if dispossessed  is entitled to recover possession  subject  of course to. the law of limitation.  If he proves that he  was dispossessed within 12 years he can maintain his action. it  is because of this that Mr. Nambiar claimed entitled  to plead  jus  tertii.   His contention is that  in  action  of ejectment  (as opposed to an action of trespass) jus  tertii is capable of 181 being pleaded.The  old action of ejectment was used to  try freehold  titles but it was abolished in 1873.  It was  also used "for recovery ofland  by  one who claimed  not  the right  to’ seisin but the right to possession by  virtue  of some chattel interest such as a term of year." In such cases "the  defence  of jus tertii admits that the  plaintiff  had such  a right of entry as , would generally entitle  him  to succeed, but seeks to rebut that conclusion by setting up  a better  right  in some third person" or that  the  plaintiff had- no right of entry at all. To  summarize, the difference between Asher v. Whitlock  and Doe  v. Bamard is this.: In  Doe v. Barnard  the   principle settled was that it is quite open to the defendant to  rebut the  presumption that the prior possessor has  title,  i.e., seisin.   This  he can do, by showing that the title  is  in himself; if he cannot do this he, can show that the title is in  some  third person. Asher v. Whitlock lays down  that  a person  in possession of land has a good title  against  the world except the true owner and it is wrong in principle for any  one  without title or authority of the  true  owner  to dispossess  him and relying on his position as defendant  in ejectment  to remain in  possession.  As Loft in  his  Maxim No.  265 puts it Possession contra omnes velet  praeter  eur cui ius sit possessionis (He that bath possession bath right against all but him that bath the very right): See Smith  v. Oxenden 1 Ch.  Ca 25.  A defendant in such a case must  show in  himself  or  his predecessor a  valid  legal  title,  or probably  a possession prior to the plaintiff’s and thus  be able  to  raise a presumption prior in time.  It  is  to  be noticed  that Ames (Harvard Law Review Vol.  III p.  313  at 37);  Carson  (Real  Property  Statutes  2nd  Ed.  p.  180); Halsbury (Laws of England, Vol. 24, 3rd Ed. p. 255  f.n.(o); Leake (Property in Land, 2nd Ed. p. 4, 40); Lightwood  (Time Limit.  on  Actions pp. 120-133); Maitland  (supra),  Newell (Action  in, Ejectment, American Ed.  pp.  433-434);-Pollock (Law  of  Torts,  15th Ed.  P. 279); salmond  Law  of  Torts (supra);  and William and Yates (Law of Ejectment, 2nd  Ed., pp.  218, 250) hold that Doe v. Barnard does  not  represent true  law.   Winer (to whom I am indebted for  much  of  the information) gives a list of other writers who adhere  still

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to the view that jus tertii can be pleaded. Mr.  Nambiar  pressed upon us, the view that we  should  not accept  Perry v. Clissold.  It must be remembered that  that case  was argued twice before the Privy Council and  on  the second occasion Earl of Halsbury, L. ’ C. Lords  Macnaghten, Davey,  Robertson, Atkinson, Sir Ford North and  Sir  Arthur Wilson heard the case.  Lord, Macnaghten’s judgment is brief but,  quite clear . Mr. Nambiar relies upon two other  cases of, the Privy Council and a reference to them is  necessary. In  Dharani  Kanta Lahiri v. Garbar Ali Khan, 25  M.L.J.  95 P.C. a suit 182 in ejectment was filed.  The plaintiffs failed to prove that the  lands of which they complained dispossession were  ever in their possession within 12 years before suit and that the lands  were  not  the lands covered by  a  sanad  which  was produced  by the defendants.  The case  is  distinguishable. It  is to be noticed that Lord Macnaghten was the  President of  the  Board and the judgment of the  Board,  December  5, 1912, did not base the case on Doe v. Barnard or even  refer to  it.   The second is Mahabir Prasad v. Jamuna  Singh,  92 I.C. 31 P.C. In this case the Board observed as follows :-               "Counsel for the appellant (defendant)  admits               that in the face of the ruling by the Board he               could not impugn the reversionary right of the               plaintiff’s vendors, but he contends that  the               defendant  is  in possession and in  order  to               eject  him the plaintiff must show that  there               is  no  other reversionary heir  in  the  same               degree  ’or  nearer than his  assignors  whose               title he (the defendant) can urge against  the               plaintiff’s  claim  for ejectment.   In  other               words,  the action being one of ejectment  the               defendant is entitled to plead in defence  the               right  of someone else equally  entitled  with               the plaintiff’s vendors." After  observing this the Board held that the defendant  had failed to prove his point.  The observation does not lead to the  conclusion that a defendant can prove title in  another unconnected  with  his  own  estate.  The  case  is  not  an authority for the wider proposition. The  cases of the Judicial Committee are not binding  on  us but  we  approve  of the dictum in Perry  v.  Clissold.   No subsequent  case  has been brought to our  notice  departing from  that view.  No doubt a great controversy  exists  over the two cases of Deo v. Barnard and Asher v. Whitlock but it must  be taken to be finally resolved by Perry v.  Clissold. A similar view has been consistently taken in India and  the amendment of the Indian Limitation Act has given approval to the  proposition  accepted in Perry v. Clissold and  may  be taken  to be declaratory of the law in India.  We hold  that the suit was maintainable. It  is  next submitted that the High Court should  not  have given  its assistance to the plaintiff whose possession  was unlawful  to  begin with especially when,  by  granting  the decree, an illegality would be condoned and perpetuated.  In support of this case the Society relies on the provisions of Regulation  IV of 1091 and other connected  Regulations  and rules.   It points out that under Regulation IV of 1091,  it was  unlawful  for anyone to occupy Government  land  and  a punishment of fine in addition 183 to eviction was prescribed, and all crops and other products were  liable to confiscation.  If eviction was resisted  the Dewan  could order the arrest and detention in jail  of  the

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offender.   Section 18 barred Civil Courts from  taking  any action   in  respect  of  orders,  passed  under  the   said Regulation except only when it was established that the land was not government land.  The civil court, it is  submitted, could  not  grant  a decree for possession nor  set  up  the possession  of  a  person who was  an  offender  under  the. Regulation. In our opinion these submissions are not well-founded.  The, Regulations  were  intended  to  regulate  the  relation  of Government and persons but had no bearing upon the relations between  persons claiming to be in possession.  Further  the penalty was. a fine for wrongful occupation and in no  sense a  punishment for crime.  The illegality of  the  possession was  thus  not  a criminal act and  the  regaining  of  lost possession  cannot  be  described  as.  an  action  to  take advantage  of  one’s  own  illegal  action.   In  fact   the plaintiff was not required to rely upon any illegality which is  the consideration Which makes courts deny  their  assis- tance  to a party.  The Society relied  upon-the  oft-quoted observations  of Lord Mansfield, C.J. in Holman v.  Johnson, (1775) 1 Cowper 341               "the  objection that a contract is immoral  or               illegal  as  between plaintiff  and  defendant               sounds  at all times very ill in the mouth  of               the  defendant.   It  is  not  for  his  sake,               however,  that the objection is  ever  allowed               but  it  is founded in general  principles  of               policy  which the defendant has the  advantage               of,  contrary to the real justice, as  between               him  and the plaintiff, by accident, if I  may               say  so.   The principle of public  policy  is               this  :  ex dolo malo non  oritur  actio.   No               court  will lend its aid to a man  who  founds               his  cause  of action upon an  immoral  or  an               illegal  act.   If, from the  plaintiff’s  own               stating  or  otherwise  the  cause  of  action               appears   to  arise  ex  turpicausa   or   the               transgression  of  a  positive  law  of   this               country, there the court says he has no  right               to  be assisted.  It is upon that  ground  the               Court goes; not for the sake of the defendant,               but  because they will not lend their  aid  to               such a plaintiff. These  are  general  observations applicable to  a  case  of illegality on which a party must rely to succeed.  In a case in  which a plaintiff must rely upon his own illegality  the court  may  refuse him assistance.  But there is  the  other proposition  that if a plaintiff does not have to rely  upon any such illegality, then although the possession had  begun in  trespass  a suit can be maintained  for  restitution  of possession.  Otherwise the opposite 184 party can make unjust enrichment although its own possession is worngful against the claimant.  It is to be noticed  that the  law  regards  possession with  such  favour  that  even against  the rightful owner a suit by a trespasser is  well- founded   if  he  brings  the  suit  within  6   months   of dispossession.   We  have also shown ,that  there  is  ample authority for the proposition that even after the expiry  of these  6 months a suit can be maintained within 12 years  to recover possession of which a person is deprived by one  who is not an owner or has no authority from him. The  Society  next argues that since- it has  got  a  second Kuthakapattom  we  must  relate  it  back  to  the  original dispossession  and treat it as a statutory order  under  the

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laws  of Travancore.  It refers us to the Travancore  Survey and  Boundaries  Regulation of May 1942 (Rule 9),  the  Land Conservancy Regulation (as ,amended from time to time),  the Puduval  Rules and the Land Assignment Regulations and  some other rules to show that the .forest lands were property  of Government and the plaintiff could not be said to be holding land under a grant from Government but, the Society is.   We think  that  this argument is of the same character  as  the argument about jus tertii.  The case is between two  persons neither  of  whom had any right to the suit lands  and  were trespassers   one   after  the  other.    No   question   of implementing  a statutory order arises.  The, grant  of  the second Kuthakapattom is not related back to the grant of the original grant and can only be considered if and when it  is pleaded.   It  is therefore not necessary to  consider  this point  at  the moment when we are not in possession  of  the case of the plaintiff which he may set up in answer to  this case. This brings us to the question whether the High Court should have  allowed  the  amendment  sought  in  1965.   The  suit was .,filed in 1942 and the second Kuthakapattom was granted in 1948.  The last amendment was asked for in 1958.   Before this the plaintiff had pointedly drawn attention to the fact that arguments based on the new Kuthakapattom were likely to be pressed.  The trial Judge had ruled that arguments  could not be shut out in advance.  These circumstances have to  be borne in mind in approaching the problem. It is, however, plain that after the grant of Kuthakapattom ’in  1948 the possession of the Society became not  only  de facto but also de jure unless there was a flaw in the grant. It  is equally plain that the Society could only resist  the present  suit by proving its title or the authority  of  the true  owner, namely. the State.  The former was not open  to the Society before 1948 ’but the latter was after the grant. The Society contends that even if the facts were not pleaded the documents were before the Court :and the parties knew of them and indeed the plaintiff- had himself 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. (1), Shamu Patter v. Abdul Kadir Ravuthan and Ors.  (2) and  Kunju kesavan v.. M. M. Philip, I.C.S.,  and  Ors.(3)do not  help the Society.  If the plea had been raised by   the Society  it  would undoubtedly have been countered  and  one does not know what use the plaintiff would have made of  the document’s had got marked.  Therefore it cannot be said that the  trial  Judge  ’was, in error  in  not  considering  the documents. This  brings us to the general proposition whether the  High Court  should  have allowed the amendment late  as  it  was. The,  plaintiff  is  right that  the  application  Was  made literally  on  the eve of the judgment.   This  argument  is really based on delay and laches.  The application has:  not been  made  for  the first time in  this  Court  when  other considerations  might have applied’ It was made in the  High Court,  after the argument based on the documents on  record was  urged.   This argument was also urged in the  court  of

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trial.   The contention of the Society was thus  present  on both  the  occasions and it would have been  better  if  the Society  was  directed  to amend the  pleadings  before  the argument was heard.  The omission, however, remained. Now  it  is  a fixed principle of law that a  suit  must  be ’tried  on the original cause of action and  this  principle governs not only    the  trial of suits but  also  appeals.’ Indeed the appeal being a continuation of the suit new pleas are not considered.  If circumstances change. they can  form the   subject  of  some  other  proceedings  but  need   not ordinarily be considered in the appeal.  To this proposition there  are a few exceptions.  Sometimes it happens that  the original  relief claimed becomes inappropriate, or  the  law changes affecting the rights of the parties.  In such  cases courts   may  allow  an  amendment  pleading   the   changed circumstances,  Sometimes  also  the  changed  circumstances shorten litigation’ and then to avoid circuity of action the courts  allow  an amendment’ The practice of the  courts  is very adequately summarized in Ram Ratan Sahu v. Mohant  Sahu (4)  Mookerjee  and Holmwood, JJ. have given  the.  kind  of changed circumstances which the courts usually take  notice, with illustrations from decided cases.  The (1)  26 Bom. 360. (3)  [1964] 3 S.C.R. 634. L4 Sup.  CI/68-13 (2)  35 Mad. 607 P.C. (4)  [1907] 6 C.L.J. 74, 186 judgment  in  that case has been  consistently  followed  in India.  In  Raicharan Mandal v.  Biswanath  Mandal(1)  other cases  are  to  be found in  which  subsequent  events  were noticed.   The same view was taken by the Federal  Court  in Lachmeshwar  Prasad  Shukul  v. Keshwar  Lal  Chandhuri  (2) following the dictum of Hughes, C.J., in Patterson v.  State of Albama(3).  In Surinder Kumar & Ors. v. Gian Chand & Ors. (4) this Court also took subsequent events into account  and approved of the case of the Federal Court.  In view of these decisions   it   is  hardly  necessary   to   cite   further authorities. Mr. Gupte on behalf of the plaintiff has strenuously opposed the request for amendment.  His objection is mainly based on the,  ground  of delay and laches.  He  relies  on  Gajadhar Mahlon  v. Ambika Prasad Tiwari(5), R.  Shanmuga  Rajeshwara Sethupathie v. Chidambaram Chettiar(6) and Kanda v  Waghu(7) in  which the Judicial Committee declined  amendment  before it.   These.  cases were different.  In the first  case  the Judicial Committee held that it was within its discretion to allow  amendment but did not feel compelled to exercise  the discretion.   In the second case the amendment was no  doubt refused because it was asked for at the last moment but  the real  reason  was  that  under it a relief  of  a  wide  and exceptional nature was granted.  The point was so  intricate that  it required careful and timely pleading and a  careful trial.   In the last case the Judicial Committee relying  on the  leading case of Ma Shwe Mya v. Maung Mo Huaung(8)  held that it was not open to allow an amendment of the plaint  to cover a new issue which involved setting up a new case. As  against these cases, this Court in L. J. Leach & Co.  v. Jardine Skinner & Co.(9) Pungonda Hongonda Patil v. Kalgonda Shidgonda  Patil(10)  and A. K. Gupta and  Sons  v.  Damodar Valley  Corpn.  (11) allowed amendments when a  fresh  claim would have been time-barred.  The cases of this Court cannot be  said to be directly in point.  They do furnish  a  guide that  amendment  is  a  discretionary  matter  and  although amendment  at a late stage is not to be granted as a  matter

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of  course, the court must bear in favour of doing full  and complete  justice in the case where the party  against  whom amendment   is to be allowed can be compensated by costs  or otherwise.   Also the amendment must be one which  does  not open the case or take the opposite party ’by surprise. (1)  A.I.R. 1915 Cal. 103. (3)  [1934] 294 U.S. 600 at 607. (5)   A.I.R. 1925 P.C. 169, 170. (7)   L.R. 77 I.A. 15. (9)   [1957] S.C.R. 438. (2)   [1940] F.C.R. 84 at 87. (4)   [1958] S.C.R. 548 (6)   [1938] P.C. 123. (8)  1921 L.R. 48 I.A. 214, 217. (10)  [1957] S.C.R. 595. (11)  [1966] 1 S.C.R. 796. 187 In  the present case the, amendment sought was  not  outside the suit.  In fact issue No. 2 could have easily covered  it if  a proper plea had been raised.  The Society was  perhaps under  an impression that the fresh Kuthakapattom  would  be considered  and  the  trial Judge had  also  said  that  the argument could not be shut out.  Although it is not possible to  say that parties went to trial in regards to  the  fresh Kuthakapattom, it cannot be gain said that the plaintiff had himself  caused all the documents necessary for the plea  to be  brought on the record of the case.  No  doubt  plaintiff tried to implead Government with a view to obtaining an  in- junction but as no notice tinder s. 80 of the Code of  Civil Procedure  was given this was an exercise in futility.   But the Society was under no disability except its own inaction. If it had made a timely request it would have been granted. Thus it is a question of the delay and laches on the part of Society.  In so far as the court was concerned the amendment would  not  have unduly prolonged litigation; on  the  other hand,  it  would have cut it short.  Without  the  amendment another   suit   based  on  the  second   Kuthakapattom   is inevitable.  As we have shown above there is good  authority in support of the proposition that subsequent events may  be taken  note of if they tend to reduce litigation.   This  is not  one  of those cases in which there is a  likelihood  of prolonged  litigation  after remand or in which a  new  case will  begin.   The  amendment will  prima  facie  allow  the Society to show to the court that in addition to  possession it  has  also  title.   This will enable  the  court  to  do complete  justice,  if the plea is found good,  without  the parties having to go- to another trial. We  are, therefore, of the opinion that we should allow  the amendment.   Of course, the plaintiff will be at liberty  to controvert the new plea but he will not be allowed to  raise new pleas of his own having no relation to the grant of  the second Kuthakapattom.  As this amendment is being allowed we do not consider it advisable to state at this stage what the implications  of  the  new  grant  will  be  under  the  law applicable  in  1948.  We are, however, clear  for  reasons, already  given,  that the second Kuthakapatttom  cannot,  be regarded  as retroactive from the date of the grant  of  the first Kuthakapattom.  We wish to add that the document Ex. 1 does  not  mention that it was to be retrospective.   Now  a formal  document which has no ambiguity cannot be varied  by reference  to other documents not intended to vary it.   The only  other  documents are Ex. 6, the order  conferring  the second Kuthakapattom and Ex. 7 a demand by the Tahsildar  of the Pattom calculated at the same rate from the date of  the first  Kuthakapattom.   This follows from  the  Rules.   Any

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person  in  unlawful possession may be compelled  under  the Rules to pay pattom and 188 this  is what appears to have been ordered.  There  is  also nothing  to  show  that this was  not  the  Tahsildar’s  own interpretation  of  the  facts and the  documents.   We  are therefore quite clear that the second Kuthakapattom must  be read  prospectively  from the date of its grant, if,  it  be held that it, is valid. There are only two other matters to consider.  They are  the question  of  mesne Profits and improvements.  The  rate  of mesne  profits has already been decided and no argument  was addressed  to us about it.  We say no more about it  except, that  the rate Will be applicable to the new state of  facts in  the case after the amendment.  It is also not  necessary to  go  into  the question of improvements  now  because  in answer  to the pleas to be raised hereafter the question  of improvements will have to’ be gone into de novo in the light of  the findings reached.  The argument of the parties  that the  Rules.do  not contemplate payment  for  improvement  is neither here nor there.  That applies between Government and a private, party and not between two private parties.  These matters  will,be left for determination in  the  proceedings hereafter to be taken., In  the result we dismiss the appeal as to portion L(1)  (a) both   in  regard  to  possession  and  mesne  profits   and improvements.   As regards L (1) (b) the amendment based  on the second Kuthakapattom will be allowed and parties will go to trial-on that amendment., The plaintiff will be  entitled to   raise   his  defence  in  reference   to   the   second Kuthakapattom.    The   question  of   mesne   profits   and improvements in relation to L(1) (b) will be reconsidered in the light of the finding regarding the second  Kuthakapattom but the, rate ’of mesne profits as already determined  shall not be altered.  The plaintiff will, of course, be  entitled to mesne profits till the  date of the grant of- the  second Kuthakapattom. There is no doubt that the Society was wrongly advised.  and allowed  the question of,. amendment to be delayed.  At  the sane time by not allowing the amendment the plaintiff forces the  Issue  regarding  possession  of L  (1)  (b).   In  our judgment the Society must pay the costs thrown away, that is to  say’, that it must bear the costs incurred in  the  High Court  and the court of first instance by the  plaintiff  in Addition  to  costs on its own account.  ’In so far  as  the costs  of  this Court are concerned parties  will  bear  the costs  as  the  case is being sent to the  trial  court  for further trial. G.C:         Appeal allowed in part and case remanded. 189