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PETITIONER: REV.  FR.  K. C. ALEXANDER

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT16/08/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION:  1973 AIR 2498            1974 SCR  (1) 399  1973 SCC  (2) 737

ACT: Travancore  Land  Conservancy Act (4 of 1916),  s.  9-’Other product raised on land’ if includes trees. Trespasser-Right  to  compensation  for  trees  Planted   on another’s land.

HEADNOTE: There was a dispute regarding the ownership of certain  land between  a  Jenmi family and the State Government,  and  the Jenmi  family  filed a suit for declaration  of  its  title. While the dispute was pending, the appellant applied to  the Conservator of Forests for registration of the lands in  his name  under the Travancore Land Conservancy Act,  1916,  but the  application was rejected.  After the suit filed by  the Jenmi  family  was  dismissed,  the  appellant  who  was  in possession  of the land, was dispossessed.   The  appellant, thereafter.  filed  a  suit for the  value  of  improvements affected   by  him  on  the  land  by  planting  trees   and constructing a building. The  trial  Court  decreed the suit for  the  value  of  the building  but  rejected the rest of claim.  The  High  Court dismissed his appeal. In  appeal to this Court, it was contended that : (1)  there was no order of forfeiture of improvements as required under s.  9  of  the  Act;  (2)  the  appellant  was  entitled  to compensation  under general, law; and (3) the appellant  was not served with a notice to quit as required by s. 9 of  the Act to enable him to cut and remove the trees. Dismissing the appeal, HELD:  (1) Section 9 provides for two notices to be given  : (a)  one  notice to be given to the person  in  unauthorised occupation of government land to vacate within a  reasonable time,  and (b) another for forfeiture of any crop  or  other product  raised  on the land or to remove  any  building  or other structure within a reasonable time.  The words ’raised on  the land’ qualify both the ’crop’ and  ’other  product’, and  so,  the words ’other product’ have to be read  in  the context of the word ’crop’.  So read, trees would not be in- cluded  within the meaning of ’other product raised  on  the land  in  s.  9  of the Act,  and  therefore.  there  is  no obligation  on the respondent to give notice of  forfeiture. [405D-H; 406E]

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Clark and Another v. Gaskarth, 8 Taunt 431, applied. (2)  (a)  The  trial  court  and  High-Court  found  on  the evidence  that  the appellant’s  possession  commenced  only after  his  application for registration was  rejected,  and that.  the improvements, if any, were effected by  him  only thereafter, with full knowledge that the title to the  lands was  in  dispute.  Therefore, he could not be said to  be  a bona  fide trespasser.  It could not also be contended  that nevertheless he was a bona fide trespasser entitled to  com- pensation on the basis that he entered upon the land with  a bona   fide  intention  of  improving  the  land.   Such   a contention  would  give validity to  a  dangerous  principle which  will  condone  all acts of  deliberate  and  wrongful trespass, be-cause, any person desperate enough to  trespass on  other man’s land without any claim of title  can  always plead  that  he had a bona fide intention of  improving  the land  whether  or  not  the owner of  the  land  wanted  the improvement.   The maxim of English law  quicquid  plantatur solo, solo cedit (whatever is affixed to the soil belongs to the soil) is not applicable to India. but that is not to say that  wrongful trespasser can plant trees on someone  else’s land  and claim a right to those trees after he is  evicted. [406E-H; 407A] Vallabdas  Narainji v. Development Officer,  Bandra,  A.I.R. 1929 P.C. 163, applied. 400 (b)  in  any  case, the position of a trespasser  cannot  be better  than that of a lawful tenant, who, having  lost  his possession cannot claim compensation or damages for anything erected on the land or any improvements made therein. [407H] (3)  There  are no clear allegations in the plaint that  the appellant  was  evicted without notice.  No issue  had  been framed regarding the notice of eviction not being given  and no  application for framing such an issue was filed  in  the trial  court, or the High Court or this  Court.   Therefore, the appellant, who was not a mere trespasser but one who had deliberately  entered upon the land knowing fully well  that he  had no right, claim or title to the land, or any  manner of right to enter the land, and who had been rightly evicted as  a  trespasser, should not be permitted to raise  such  a contention in this Court. [408H-409B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 744 of 1967. Appeal  by special leave from the judgment and decree  dated the  2nd March 1965, of the Kerala High Court at  Ernakulam, in A. S. No. 216 of 1961. J.   Krishnamoorthy  Iyer, Annamma Allexander, S. K.  Mehta, K.  R.  Nagaraja,  Qamaruddin  and  Vinod  Dhawan,  for  the appellant. A. R. Somnath Iyer and M. R. K. Pillai, for the respondent. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-This appeal is by special leave against the  judgment and decree of the High Court of  Kerala  which dismissed  an appeal against the judgment and decree of  the Subordinate Court of Havelikkara.  The appellant had filed a suit  on October 24, 1942, for the recovery of Rs.  2  lakhs and  interest  thereon from the date of suit and  for  costs originally against the State of Travancore now the State  of Kerala-the respondent-and three others who however were  not made  parties in the appeal before the High Court.   It  has alleged  in  the plaint that the plaintiff  (appellant)  was wrongfully  dispossessed from 160 acres of land  along  with

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the  improvements which had been effected by him and as  the State had appropriated those improvements without any  right or title thereto he claimed the value of those improvements. It  was the appellant’s case that he had been in  occupation of  the said 160 acres of Cherikkal land  (unregistered  dry lands  in hilly tracts) about which and the adjoining  lands there  was  a dispute as to whether the same belonged  to  a jenmi family known as Koodalvalli Illom--hereinafter  called ’the Illom--or to the Government of the erstwhile Travancore State.   The  appellant’s  father  and  the  appellant   had occupied  these lands, made improvement thereon by  planting coconut  trees, arecanut palms,  peppervines,  rubber-trees, jack trees, other trees, and by constructing bungalow, huts, wells  etc. in the bona fide belief that the lands  belonged to the Illom.  It was stated that according to the  practice prevailing   in  the  erstwhile  State  of  Travancore   the cultivators   could  enter  into  unoccupied   waste   lands belonging to the janmies with the object of cultivating  and improving  them,  and as they held the lands under  them  by paying  rent, the consent of the Jemies to  such  occupation was implied.  This practice it seems, 401 was  also  current  in respect of lands  belonging  to  the, Government be-fore the Travancore Land Conservancy Act 4  of 1091 (24-7-1916) (hereinafter called ’the Act’).  It is  the case  of the appellant that even, after the Act was  passed, unauthorised  occupants of land belonging to the  Government who had made improvements therein had, under the rules  made both  under  the  Act and the Land  Assignment  Act  a  pre- ferential  claim  over others for getting  kuthakapattom  or assignment of the property in their possession. It may be mentioned that in respect of the 160 acres of land of’ the Illom which were occupied by the appellant’s  father and the appellant, there was a dispute between the Illom and the  Travancore State from about 1848.  While  this  dispute was  pending  it  appears  the  appellant  applied  to   the Conservator of Forests for registration of the lands in  his name,  but  the application was rejected on  June  14,  1919 stating that the land applied for cannot be registered (Ext. A).  While the application for registration was pending, the dispute  between the Illom and the State of  Travancore  had reached a stage when the Illom had to institute a suit O. S. No. No. 126 of 1096 (January 1918) in the District Court  at Quilon  for a declaration of its title to those  properties. In  that  suit  the appellant,  after  his  application  for registration was rejected, sought to get himself  impleaded, but that application also was rejected.  Thereafter the suit filed by the Illom was dismissed on 28-6-1109 (February  10, 1934).  An appeal against it was dismissed on September  27, 1943.   It may here be mentioned that while the suit of  the Illom  i.e.  O.S. No. 126 of 1096 M.E. was  pending  in  the District  Court,  Quilon, the Government of  Travancore  had initiated proceedings in ejectment against the appellant  by L. C. Case No. 112 of 1100; (1925 A.D.). As the suit of  the illom  had  been finally disposed of and the title  of’  the Illom  to  the  lands was  not  established,  the  appellant apprehending that he might be ejected in the above L.C. Case filed a suit No. O.S. 156 of 1103 M.E. (1927-28 A.D.) in the District Court at Quilon against the respondent to establish his  right  and  title  to the said 160  acres  and  in  the adjoining  Cherikkal lands in his possession.  In that  suit an injunction was prayed for in respect of 100 acres of  the property involved in the suit, but the prayer was  rejected. Against  that order a Civil Miscellaneous Appeal No. 206  of 1110  M.E.  (1934-35 A.D.) was filed in the  High  Court  of

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Travancore.    The  High  Court  issued  a  commission   for inspecting the properties and the Commissioner in his report part  13  of Ext.  CC set out the improvements made  by  the appellant  on  the lands which comprised of  a  bungalow  in which the appellant was residing, a number of small  houses. a rubbers state, and a large number of other valuable  trees like jack trees, mango trees, coconut trees etc.  It appears that   as   there   was  no   injunction   restraining   his dispossession  in L.C. Case No. 112 of 11,00 M.E.  an  order was passed for dispossessing the appellant on July 24. 1939, Ext.   VI.   The  appellant, pursuant  to  this  order,  was dispossessed  from the lands and possession of  these  lands was given to the second defendant Nair Service Society  Ltd. in  August  1939.   Thereafter the suit out  of  which  this appeal  arises was filed against the Government  on  October 24, 1942. 402 The respondent-State contended that the appellant encroached on  the suit lands, that proceedings were taken against  him in  L.C. Case No. 112 of 11 00 M. E. and he was  evicted  in due course, that the trespass by the appellant was of recent origin,  that the allegation that the entry was made in  the belief  that the land belonged to the Illom was false,  that the  Revenue  and  Forest Departments  did  not  harass  the appellant but they took steps for dispossessing him only  in accordance with the law, that the Commissioner’s report  was not  correct  in  that all the  improvements  noted  by  the Commissioner  were  not made by the appellant but  by  other independent  squatters,  that after due notice an  order  of forfeiture had been passed in L.C. Case No. 112 of 1100 M.E. and  the appellant was therefore not entitled to  claim  any value  for  improvements as it was his duty  to  remove  any building before he was evicted.  The respondent also averred that it had not taken possession of any crops or movables as stated  in  the ,plaint and that the movables found  in  the building  were  attached for the realisation of  arrears  of fine  etc.   There  were other allegations also  but  it  is unnecessary for purposes of this appeal to refer to them. Several issues were framed, but it is not necessary to refer to  :them except to say that the suit was decreed  only  for Rs.  3000/being the value of the appellant’s bungalow  taken possession of by the respondent.  The rest of the claim  was dismissed.  it was observed by the Trial Court  that  though there  is  no  specific evidence to show  when  exactly  the possession  of  the appellant had  commenced,  the  evidence however  indicated  that it must have started close  to  the year  I  100  M. E. and that in any case the  claim  of  the appellant  that possession was from 1030 M.E. was  not  true inasmuch as from the year 1067 M.E. when the Act was  passed possession without permission was penal and it could not  be imagined that the appellant was left in peace for all  these long  years.   The Trial Court also held  that  all  through these  long years there had been a dispute as to  the  title between  the Illom and the State and after the suit  of  the Illom was dismissed and the Illom’s title was not sustained, the allegation that the improvements were effected cannot be stated  to be bona fide.  It pointed out that the  plaintiff (appellant) had applied to get himself impleaded on 0.S. No. 126  of _ 109,6 M. E. but his application was rejected,  and after  that suit was dismissed the appellant  again  applied for  registry,  but  that  was  also  rejected.   All  this, according to the Trial Court, would show that the  appellant was aware that he was remaining on Government lands  without title.   It  was further held that the greater part  of  the improvements  were  effected  by  the  appellant  after  the

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proceedings  in  the  L.C. Case No. 112 of  1100  M.E.  were stayed,  as such it cannot be said that  these  improvements could have been effected in good faith.  With respect to the allegation that an order of forfeiture was not served on the appellant  under s. 9 of the .Act, the Court  observed  that though the State had in its written statement contended that such  an  order had been passed, no order  was  produced  in evidence and consequently it was conceded by the  Government Pleader that no such order was passed.  In the circumstances the  question that had to be considered was whether  without an  order of forfeiture being passed, the  respondent  could forfeit the improve- 403 ments.   On  this  issue  it was held  that  no  notice,  of forfeiture  of  trees. need be given under s. 9 of  the  Act and,  therefore no compensation or damages were  payable  in respect thereof. The  High Court accepted the finding of the Trial  Court  on issue.  It observed that the evidence in the case  indicated that the possession of the father of the appellant must have commenced  close to the year 1100 M.E. and consequently  the claim of the appellant that lie was in possession from  1030 M.E.  cannot  be true.  It then said :  "If  the  possession commenced  only about the year 1100, it certainly cannot  be under  any bona fide claim of title for even on.  12-6-1094, the  petitioner knew that the land was Government  land  and had  then applied for assignment of the  land."  Accordingly the  High Court found that at no time the occupation of  the land by the appellant was under a bona fide claim of title. The contention of the appellant that the trees which are the subject-matter  of the appeal should have been forfeited  by an order passed under s. 9 of the Act and in the absence  of such. an order his right to the value of those trees had  to be  adjudged  and paid. to him was also  negatived,  as  the Court held that the words "any crop or other product  raised on  the land" occuring in s. 9 of the Act would not  include trees.   In its view these words take in what is  familiarly known  in  law as ’emblements’ which according  to  Black’s. Law  Dictionary  mean  "Such products of  the  soil  as  are annually  planted,  served and saved by  manual  labour,  as cereals,   vegetables,   Grass  maturing  for   harvest   or harvested, etc., but not grass on lands used for pasturage." In  this view it held that compensation for trees which  are to be dealt with under the general law cannot be decreed  in favour  of a mere trespasser who had no rights therein.   It was  also  of the view that the claim for  compensation  for trees which has to be dealt with under the general law under which a mere trespasser would have no rights to the  payment of compensation nor could be. appellant be allowed to remove them after his dispossession. Another  reason for disallowing the compensation  for  trees given  by  the  High  Court  was  that  the  position  of  a trespasser-whether  he be a mere trespasser or a  trespasser under a bona fide claim of title--cannot be better than that of  a tenant, and that if this is correct, then  the  appeal has  to  be dismissed on the short ground that there  is  no principle  of  law or equity which requires the  payment  of compensation in respect of trees, the ownership of which was all along, or at any rate from the dale of the  trespasser’s dispossession, vested in the State. The  learned advocate for the appellant has  reiterated  the submissions  made before the Trial Court and the High  Court and   contends  that  there  is  no  order  forfeiting   the improvements as required under s. 9 of the Act, and if s.  9 does  not  apply  and there is no  right  of  forfeiture  as

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contemplated  under s. 9, then the appellant is entitled  to compensation  under  the  general  law.   Apart  from   this contention,  towards  the end of his argument,  the  learned advocate for the appellant sought to make out a fresh  case, namely,  that as the appellant was not served with a  notice to  quit as required under s. 9 of the Act but was  forcibly evicted  without  giving him an opportunity of  cutting  and taking away 404 the trees etc. from the lands from which he was evicted,  he would be entitled to claim compensation for the improvements made by him. It may be stated that the finding that the possession of the appellant ,commenced after his application for  registration was rejected in 1919, and the improvements, if any must have been  effected only thereafter with full knowledge that  the title to the lands was in dispute between the Illom and  the Government,  is unassailable.  We have earlier  adverted  to Ext.  A and also to the fact that after the application  for registration  was  ,rejected  the  appellant  tried  to  get himself impleaded in the suit filed by the Illom against the State  which application was also rejected and so the  claim that  his  possession was bona fide or that he  was  a  bona fide .trespasser has no validity.  This finding is fortified by  s. 5 of the Act which provides that from and  after  the commencement  of  the  Act it shall not be  lawful  for  any person  to  occupy  land  which  is  the  property  of   the Government  whether Poramboke or not without the  permission from the Government or such officer of the Government as may be  ,empowered  in that behalf.  In view  of  this  specific provision the contravention of which is punishable under  s. 6 thereof, his conduct in applying for registration and  for getting  himself impleaded in the suit of the Illom  against the  Government, would show that he knew that the  land  was Government land or land in which the Government had a claim. In  these circumstances he cannot be said to be a bona  fide trespasser   particularly  after  he  had  applied  to   the Government for obtaining .a registration in his name on  the basis that it was Government land. It  is  however urged before us that the High Court  was  in error  in  thinking that the appellant did  not  occupy  the lands  as  a  trespasser with a bona  fide  claim  of  title because  it  was his case that he trespassed upon  the  land with a bona fide intention to improve the land, and as  such he  can  still  be  considered as  a  bona  fide  trespasser entitled to improvements under the general law. Before dealing with this aspect,, we will first consider the question whether trees are included within the meaning of s. 9, so as to entitle the appellant to a notice of  forfeiture thereunder.  Section 9 of the Act is in the following  terms :               "Any person unauthorisedly occupying any  land               for  which  he is liable to pay a  fine  under               section  6  and an assessment  or  prohibitory               assessment  under section 7, may be  summarily               evicted by the Division Peishkar, and any crop               or  other product raised on the land shall  be               liable to forfeiture and any building or other               structure   erected  or   anything   deposited               thereon  shall  also, if not  removed  by  him               after  such  written notice  as  the  Division               Peishkar  may  deem reasonable, be  liable  to               forfeiture.   ’Forfeiture under  this  section               shall be disposed of as the Division  Peishkar               may direct.

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              An eviction under this section shall be  made               in the following manner, namely:                By  serving a notice on a person reported  to                             be  in occupation or his agent, requir ing  him,               within such time as the Division Peishkar  may               deem reasonable after receipt of the said               405                notice to vacate the land, and if such notice               is  not  obeyed,  by removing  or  deputing  a               subordinate  to  remove  any  person  who  may               refuse to vacate the same, and, if the officer               removing any such person shall be resisted  or               obstructed   by  any  person,   the   Division               Peishkar  shall  hold a summary  enquiry  into               the, facts of the case and, if satisfied  that               the resistance or obstruction still continues,               may issue a warrant for the arrest of the said               person,  and  on his appearance may  send  him               with a warrant in the form of the Schedule for               imprisonment in the Civil Jail of the District               for  such period not exceeding 30 days as  may               be  necessary  to prevent the  continuance  of               such obstruction or resistance                Provided  that  no  person  so  committed  or               imprisoned under this section shall be  liable               to  be prosecuted under sections 176, 179  and               181 of the Travancore Penal Code in respect of               the same facts." This section provides for two notices to be given one notice is    to  be  given  to the person  who  is  in  unauthorised occupation  of Government land to vacate the land  within  a reasonable time and the other notice is to forfeit any  crop or  other  product  raised  on the land  or  to  remove  any building  or other structure erected or  anything  deposited therein  within  a reasonable time as may be stated  in  the notice.   It  was  conceded before the Trial  Court  and  no attempt  was  made  to establish anything  to  the  contrary before  the  High  Court that no  notice  of  forfeiture  as required  under s. 9 was given to the appellant.   In  these circumstances,   the   question   that   would   arise   for determination   is  whether  the  trees  come   within   the description  of "other product raised on the land".   It  is stated  before  us that at the time when the  appellant  was evicted the Transfer of Property Act was not in force.   But this is not relevant as what has to be considered is whether trees can be said to be "other product raised on the  land". The  words "raised on the land" qualify both the ’crop’  and ’other  product’,  so the words "other product" have  to  be read in the context of the word ’crop’ which precedes it. It  was  pointed out by the learned advocate that  the  High Court  was in error in equating other product raised on  the land  with  emblements  because the definition  of  crop  in Black’s Law Dictionary does include emblements, as such  the words  ’other product’ cannot also be treated as  emblements and  must  therefore  be given  a  different  meaning  which according  to him would include trees.  No doubt one of  the meanings  given in the Black’s Law Dictionary does say  that in  a  more  restricted sense the word  is  synonymous  with ’fructus  industrials’.  But the meaning to be  ascribed  to that  word is that it connotes in its larger  signification, products  of the soil that are grown and raised  yearly  and are gathered during a single season.  In this sense the term includes  "fructus  industrials" and having  regard  to  the etymology of the word it has been held to mean only products

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after  they  have  been severed from  the  soil.   The  same dictionary  gives  the  meaning of the  word  ,,product"  as follows :               "Product.    With   reference   to   property,               proceeds.:     yield;    income;     receipts;               return . ............               406               The  "products"  of a farm  may  include,  the               increase      of      cattle      on       the               premises................" Even  under this definition "product" cannot  mean  anything which is attached to the land like trees.  It may,  however, include  the  fruit  of the trees.  This  view  of  ours  is supported  by the case of Clark and Another v.  Gaskarth(1). That was a case of a trespass for breaking and entering  the closes of the plaintiffs and tearing up, digging up, cutting down, and carrying away the plaintiff’s trees, plants, roots and  seeds, growing on the closes.  Notice of this  trespass was given to the defendant.  At the time of the distress the sum  of  pound 281.6 s. was due from the plaintiffs  to  the defendant  for rent in respect of the nursery  ground.   The question  before the Court was whether the  plaintiffs  were entitled to recover against the defendant damages caused  to them  by  cutting  down and carrying  away  the  plaintiffs’ trees.   It  was Contended-that the defendant’s  action  was justified  under  the statute II G. 2, C. 19,  s.  8,  which after  enumerating certain crops, empowered the landlord  to seize  as  a distress any "other  product  whatsoever  which shall  be  growing on any part of the estate  demised"  and, therefore, the trees and shrubs in question came within that description.   The  Court rejected the contention  that  the trees and shrubs could be distrained and held that the  word product’ in the eighth section of the statute did not extend to  trees and shrubs growing in a nurseryman’s  ground,  but that  it was confined to products of a similar nature.  with those specified in that section, to all of which the process of becoming ripe, and of being cut, gathered, made, and laid up when ripe, was incidental.  In our view, therefore, trees are  not  included  within the meaning  of  ’other  products raised  on  the,  land’ in s. 9 of the  Act  and  there  is, therefore, no obligation on the Government to give notice of forfeiture under that section. It is then contended that even if trees are not included  in s.  9  and no notice of forfeiture is necessary,  under  the general law even a trespasser on the land, whether bona fide or  not,  is  entitled to compensation or  damages  for  the improvements made by him on the land We have already  agreed with  the Trial Court and the High Court that the  appellant was  not a bona fide trespasser.  But the  learned  advocate for the appellant submits that it was not his case nor is it under the general law necessary for a person who  trespassed on  the  land to trespass with a claim of bona  fide  title. According to his submission a person is nevertheless a  bona fide trespasser if he enters upon the land with a bona  fide intention  of  improving the land.  No  authority  has  been cited for this novel proposition, and if accepted, it  would give  validity to a dangerous principle which  will  condone all  acts  of deliberate and wrongful trespass  because  any person  desparate  enough to trespass on  other  mans’  land without  any claim of title can always plead that he  had  a bona fide intention of improving the land whether the  owner of that land wants that improvement or not.  This  vicarious and  altruistic exhibition of good intention may even  cause damage to the land of an owner who may not want improvements of  such  a kind as tree plantation.  It is  true  that  the

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maxim  of  the English law "quicquid  plantatur  solo,  solo cedit"  i.e. whatever is affixed to the soil belongs to  the soil, is. not applicable in (1)  8 Taunt 431, 407 India but that is not to say that a wrongful trespasser  can plant  trees  on some one else’s land and claim a  right  to those  trees  after he is evicted.  The  case  of  Vallabdas Narainji v. Development Officer, Bandra(1), which was  cited by  the  learned counsel for the appellant does  not  assist him,  for  the Privy Council did not think it  necessary  to give  a  decision  on what it termed to  be  a  far-reaching contention.   That  was a case in which the  Government  had taken  possession  of  the lands  and  had  erected  certain building  on  the land before a decision under s. 6  of  the Land Acquisition Act was made as to the appellant’s property arid  it was contended that the appellant should be  allowed the value of the land in the state in which it then was i.e. with  buildings on it.  It appears that the  Government  had resolved to acquire the land in question and other lands and by  arrangement  with  certain  of  the  sutidars  it   took possession  of such land, including a portion which  was  in the occupation of the appellant.  Upon such land,  including a portion in the possession of the appellant they  proceeded to erect buildings without the necessary notification  under s. 6 of the Land Acquisition Act which was not served  until November  4, 1920.  On these findings it was  observed  that the  Government were in a position, by law at any  rate,  to regularize  their possession by such a notification  a  fact which becomes material when it has to be considered what the nature of the trespass is.  Both the Assistant Judge and the High Court negatived the claim of the appellant.  Before the Privy  Council it was contended on behalf of  the  appellant that  in the various cases relied upon, there was  at  least some  genuine  claim  or belief in the  party  erecting  the buildings  that he had a title to do so, even though he  was eventually held to be a trespasser; and it was urged that no such  claim or belief existed in that case, in which it  was said  the  Government  without  any  pretence  of  a  right, tortuously invaded the appellant’s property and proceeded to deal  with it as their own. it is in this context  that  the respondent’s  contention  that even if the  appellants  were considered  to  be  mere trespassers  they  would  still  be entitled  to the value of the improvements and  contest  the claim of the appellant was described, as already stated,  as a far-reaching contention.  The Board, however, agreed  with what  was apparently the view of both Courts in  India  that under the circumstances of this case, as already set  forth, by  the  law of India, which they appear to  have  correctly interpreted,  the  Government officials were  in  possession "not  as mere trespassers" but under such a colour of  title that the buildings erected by them on the land ought not  to be  included in the valuation as having become the  property of the landowner.  This case does not support the contention that  a mere trespasser who has deliberately and  wrongfully contrary to the provisions of s. 5 of the Act, entered ’upon another’s land which makes such an act even punishable under s.  6  thereof, is entitled to compensation  for  the  trees planted by him on the land. In  any  case,  as  the High  Court  rightly  observed,  the position  of  a trespasser cannot be better than that  of  a lawful  tenant who having lost his possession  cannot  claim compensation or damages for anything erected on the land  or any improvements made therein.  The appellant’s claim  after he  was evicted cannot, on the same parity of reasoning,  be

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held  to  be  valid.   Once  the  appellant’s  counsel   was confronted I with this (1)  A.I.R. 1929 P.C. 163. 408 proposition,  he  tried  to raise  an  entirely  new  point, namely,  that  no  notice  of  eviction  was  given  to  the appellant, and if such a notice had been given to him  under s.  9,  he  would have cut the trees and  taken  them  away, within  the  time allowed for him to vacate the  lands.   In support  of  this  contention  he has  referred  us  to  the leadings contained in paragraph-3 of the plaint in which  it is stated :               "The  improvements effected by  the  plaintiff               have  a  value  of  Rs. 2  lakhs  as  per  the               accounts shown below.  In his helplessness the               plaintiff  had even applied to  Government  to               give  him  the land in which he  had  effected               improvements,  on kuthakapattom.  But  out  of               the  said land 160 acres were taken out of  my               possession and given to the 2nd defendant even               without  giving me the opportunity  to  remove               the movable improvements, such as cultivation,               cattle,  machines, utensils,  houses,  stocked               crops, ripe crops etc., belonging to me." These averments in the above paragraph do not clearly allege that  he was evicted without notice, nor has any  allegation been  made that he was forcibly evicted from the lands  with the  help  of the police etc. as it has now  been  contended before us.  On the other hand what the plaintiff (appellant) stated shows that no opportunity was given to him to  remove the  movable  improvements,  such  as  cultivation,  cattle, machines,  utensils, houses, stocked crops, ripe crops  etc. which belonged to him.  There is nothing stated by him  that he had no opportunity to cut trees and take them away.  Even in  paragraph-4  of the plaint where he  complains  that  no notice of forfeiture was given to him, he mentions only  the items referred to in paragraph-3.  It is in this connection, he  says,  that  no legal procedure  had  been  followed  by Government  for  taking  them into  possession,  which  only implies  that  it is in respect of the  items  mentioned  in paragraph-3.   It is again stated in, paragraph-4  that  "It was  irregular on the part of Government to take  possession of the above items".  The respondent did not understand  the averments  in the plaint as alleging that no notice to  quit was  given to him is evident from the written  statement  of the respondent in paragraph, where it is stated thus :               "This defendant submits that after due  notice               an  order  of forfeiture has  been  passed  in               Poramboke Case 112 of 11 00 and the  plaintiff               is  therefore not entitled to claim any  value               of improvements or value of any building." The  issues that had been famed by the Trial Court  also  do not  refer to this aspect.  No doubt in the evidence of  the plaintiff  P.W. 1 states that he was evicted from the  lands without   giving   him   an  opportunity   to   remove   the improvements, and in cross-examination he was asked  whether he  was not given any notice prior to the dispossession  and he said that certainly no notice was, received.  P.W. 4  the Manager  was asked in cross-examination whether he had  been given  any prior- information or notice about  eviction  and this  witness also said that there was no prior  information or  notice.  While these passages might show that no  notice of  eviction  was  given, even at that stage  there  was  no application  for  an  issue being framed, nor  has  such  an application  been made in the appeal before the High  Court,

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nor even before this Court. en it has been 409 held  that the appellant was not a mere trespasser  and  had deliberately entered upon the lands knowing fully well  that he  had no right, claim or title to the lands or had in  any manner  a  right  to enter the land  and  has  been  rightly evicted as a trespasser, he cannot now be permitted to raise this contention before us. In  the view we have taken, the appeal has no substance  and is accordingly dismissed with no order as to costs, but  the court fee will be recovered from the appellant. V.P.S. Appeal dismissed. 410