P L D 1957 Dacca (PLP)

GUHA J.‑This is a second appeal by the defendant No. 3 against the concurrent decision of the learned Subordinate Judge of Chittagong and arises in a suit for declaration of plaintiffs' title to the land described, in the schedule to the plaint and for recovery of khas, possession after evicting the defendant there from, and on removal of the structures standing thereon. The facts tray be briefly stated thus : The suit land is R. S. Plot No. 492 comprising an area of 13 acres audit appertains to a Noabad taluk, Abdul Majid, bearing Touzi No. 20167 of the Chittagong Collectorate. The plaintiff purchased the suit land along with outer lands at a revenue sale on the 7th November 1929, and took delivery of posses sion on the 21st June, 1931. Then he filed Title Suit No. 171/41/77/42 against the predecessor‑in‑interest of the defend ants and others for khas possession and obtained an ex‑parse decree. The predecessor of the defendant No. 3, Emdadali, filed are‑hearing case, which was dismissed on contest on the 21st August, 1943. Thereafter the plaintiff delivery of possession on the 6th November, 1944. But on the prayer of Emdadali some time was granted to him by the plaintiff for quitting the suit land, which was his homestead, and he promised to shift elsewhere ; but Emdadali died soon after; and after his death defendant did not quit, the suit land inspite of repeated demands. Therefore, the snit was filed for de::1a ration of title of the plaintiff and also for khas possession by demolition of the building and structures raised by defendant No. 3 on the suit and. This suit was contested by defendant No. 3 alone and in substance his defence was that as the plaintiff cad not pray for getting khas possession on devolution structures and buildings in Title Suit No. 171/41/77/42 he was rot entitled to get relief to that effect in this suit. In other words, the defence raised three legal bars as to the maintainability of the suit, namely, one under Order 11, rule 2, of tire Code of Civil Procedure, another under section 47 of the Code and the last one was that the suit was barred by limitation. The learned Munsif rejected the defence contentions and passed a decree it favour of the plaintiff as prayed for. On appeal b: defendant No. 3 in the District Court, the appeal was heard by the learned Subordinate Judge of Chittagong and before him the said three statutory bars were raised but they were all negatived by the learned Subordinate Judge and in consequence the appeal was dismissed. The defendant No. 3 therefore, appeals here. In substance only one contention is raised by the learned Advocate for defendant No. 3 appellant before me, and that is this that the present suit is barred under Order 11, rule 2 of the Code of Civil Procedure. In developing his argument Mr. Rakshit for the appellant contends that in revenue sale, what is purchased is the land which is charged with revenue and that the structures or buts and buildings on the land are not so charged and are not covered by the purchase. There fore, in a sale under Act XI of 1859, the estate is sold in the condition in which it was at the time of the settlement; and the persuader does not derive his title from the defaulting proprietor but from the Crown, and he is entitled to the estate in the same state or condition in which it was at its inception. In that connection Mr. Rakshit further argues that as regards the effect of a revenue sale, on a building or structures erected by ex‑proprietor or the ex‑holder or the defaulter, the general rule is that it who makes improve ment of the land, is not a trespasser but is in posses sion under a bona fide title or a claim, he is entitled either to remove the building or structure restoring the land to its original state in which it was before the improvement was made or to obtain compensation for the value of the building or structure, if it is allowed to remain for the benefit of the owner of the soil the revenue sale purchaser. The option of tailing the building or allowing removal of the structure or building remains always with the order of the land. In this case it was not taken down and removed by the person, who built it during the continuance of is tenancy, which he possessed. If the revenue sale purchaser does not exercise his option, the ownership of the building remains wits the builder. With these prelimi naries, Mr. Rakshit gees on to state that his client does not challenge the title of tae plaintiff, but his client desires that he should remain on the land. The plaintiff has surely pur chased the laud in a revenue sale but he did not purchase the building or the structure or the hut, be it pucca or kuchha and not having done so, he was not entitled to get a decree for demolition of those buts or buildings or structures. Then again the plaintiff brought a suit in the year 1941 against the defendants for declaration of his title rid for khas possession and there it was rated that whatever encumbrances had been created by the defaulting proprietor or had been impose upon the land by the actions or [aches of the defaulting pro prietor, those should be removed and khas possession should be delivered to the plaintiff. That suit was decreed ex‑parse, and the attempt to have the suit reheard became futile. From is it is argued on behalf of defendant No. 3 appellant that the present suit for decoration of title and for khas possession by demolition of clearly barred in view of the provisions in sub‑rule (2) of rule 7 of Order 11 of the Code of Civil Procedure. Mr. Hasan, who appears for the plaintiff‑respondent, tries to repel the content on of Mr. Rakshit by saying that in order to apply the provisions of rule 2 of Order 11 of the ill this case, the two causes of action or the present suit and of the previous suit of 1941, much be the same; but as the cause of action of this suit is different from that of the previous suit of 1941, therefore, the present suit cannot be barred under Order 11, rule 2 of the Code of Civil Procedure. In developing his rejoinder, Mr. Hasan refers ma .to the provisions of sub‑rules (1) and (3) of rule 35 of Order XXI and also the provisions of Order XXI, rule 95 of the Code, and argues that removal of pea‑son as was prayed for .in the previous suit of 1941, including removal of all structures and obstructions created thereon by the defendant and that the 'words used in the; sup‑rule (2) of Order II as well as is sub rules (1) and (3) of rule 33 and rule. 95 of Order XXI, were used in the nature of illustrations, and therefore, it must ire held that present suit cannot be barred under Order II, rule 2 of the Code of Civil Procedure. In other avoids, Mr. Hasan argues that though in the present suit there is a prayer for demolition of huts, that prayer must be deemed to have been Included in the prayer for removing the person as used in the plaint of the previous suit and in the decree, in that suit. So, there is no substance in the contention of Mr. Rakshit. That in substance is the rejoinder of Mr. Hasan to tae argument of Mr. Rakshit for the appellant. Mr. Hasan also argues that as his clients took symbolical possession against the predecessor‑in‑interest of the defendant appellant, that amounted to actual possession. That is a matter which is now settled by two decisions of the Full Bench of the Calcutta High Court in Juggobondhu Mukherjee v. Rum Chunder Bysak (I L R 5 Cal. 584 (F B)) and Joggobondhu Mitter v. Purnanund Ghosami (I L R 16 Cal. 530 (F B)) and two decisions of the Privy Council in Thakar Sri Sri Radha Krishna Chardorji v. Ram Bahadur (27 C L J 191 (P C)) and Adyunath Ghatak v. Krishna Prasad Singh (53 C W N 883 (P C)). In order to appreciate the question that requires determination here, we shall have to bear in mind the, right that accrues to a revenue sale purchaser. As it has already been pointed out that what the revenue sale purchaser purchases and gets title to, is the land and not the structures and in buildings standing thereon ; and the matter is so well establish ed that it has stood the test of time at least from the year .1866 since it was pronounced by a Full Bench of the Calcutta High Court in the case of Thakur Chunder Paramartick v. Ramdhone Bhartacharjee (6 W R 228 F B). I feel it is noteworthy to refer to certain observations from that decision of Sir Barnes Peacock, who delivered the judgment of the Full Bench to the effect: "We have not been able to find in the law or customs of this country any traces of the existence of an absolute rule of law that whatever is fixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself." I think it is clear that, according to the usages and customs of this country, buildings arid otter such improvements made on land do not by mere accident of their attachment to the soil, become the property of the owner of the soil ; and I think it should be laid down as a general rule that, if he, who makes the improvement, is not a mere trespasser but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made or to obtain compensation for the value of the building if it is alleged to remain for the benefit of the owner of the soil option of taking the building or allowing the removal of the materials remaining with the owner of the land in those cases from which the building is not taken down by the builder during the continuance of any tenancy which he may possess. It appears to me that the same principles have been laid down by the officiating Chief Justice Norman and Locke, J. in the case of Shibdoss Banerjee v. Bamon Doss Mookherjee (15 W R 360) and it was laid clown there by the learned Chief Justice that the house built on a tenure or an estate is not art incumbrance. In this connection, I should also refer to what was stated by Lord Atkinson in the case of Maharaja Surja Kanta Acharjya Bahadur (since deceased) v. Sarat Chandra Roy Chowdhuri (18 C W N 1281 (1285) P C ) " On the failure of an owner to pay the Government assessment, his estate or interest in the land is forfeited or rather determined slid the purchaser at a Revenue sale purchases not the interest of the defaulting owner but that elf the Crown, subject to the payment of the Government assessment." Therefore, what passes in the revenue sale is the land and not the structure. I shall here refer to certain decisions of the Privy Council where it has been held by their Lordships of the Judicial Committee of the Privy Council that the law on the subject as aforesaid and as laid down in the case of Thakur Narayan Das Khettry v. Jatindra Nath Roy Choudhury and others (L R 54 I A 218), and Sir Lancelot Sanderson in delivering the judgment of the Board observed at page 224 to the following effect: "Their Lordships, therefore, are of opinion that in construing the provisions of the above-mentioned Acts, it is necessary to bear in mind the statement made by Sir Barnes Peacock in the above-mentioned case, which seems to have been accepted for many years as a correct pronounce ment." That is also the view expressed in a later decision of the Privy Council in the case of Ballabhadas Naranji v. Develop ment Officer, Bandra (L R 56 I A 259, (262‑63)) their Lordships accepted the propo sition of law as laid down in 6 Weekly Reporter 228 F. B. Then the question arises if in these circumstances, the plaintiff can get a decree for demolition of the huts or buildings in question, which are standing on the land purchased at a revenue sale and whether an effective decree could be passed giving the plaintiff a right to that effect. This matter engaged the attention of the Courts from a very long time, and one of tribe earliest decisions teat I can recollect is in the ease of Radha Goblad Shaha v. Brijendra Koowar Roy Choudhary (18 W R 526) and there it has been laid down that if in executing a decree for khan possession it is necessary to remove any of the defendants from the land covered by the decree, the Court on application is authorised under Act VIII of 1859, section 223 (Order XXI, rule 35) to remove such person but if the decree is silent as to a building situated on the land, it is not within the province of the Court to direct that the building be pulled down. This law has stood `the test of time. We may next refer to the decision in the case of Maharaja Bir Bikram Kiehore Manikva Bahadur v. Raj Kumar Pal and another (38 C W N 1051), where the headnote correctly shows, what the decision is and that is to the following effect: "When there are certain structures on land purchased in execution of a decree, such structures not being covered by the sale, there can be no demolition of the structures ' for the purpose of delivery of possession under Order XXI, rule 95, which only contemplates removal of persons refusing to vacate the purchased properties, i.e., in the present case, the land. "The possession which the Court will give will be mere vacant possession, but will not be concerned with any act of demolition." And in that case their Lordships of the Calcutta High Court followed the decision reported in 18 Weekly Reporter

526. But in somewhat similar circumstances like the present one, Mr. Justice R. C. Mitter sitting with Mr. Justice Akram in the case of Mr. K. K. Das v. Sm. Amine Khatun Bibi and another (44 C W N 247), have reviewed the case‑laws and have come to a conclusion which dots not in any way militate against the contention of Mr. Rakshit nor it does favour the contention of Mr. Hasan ; but rather supports that of Mr. Rakshit. It may be stated here that their Lordships have said that buildings and other such structures when erected by a person on land to which he has no title do not by the mere accident of their attachment to the soil become the property of the owner of the land; but when such person is in possession of the land under a bona fide title or claim of title, he can either remove the structures or be compensated for them at the option of the owner of the land. Mr. Hassan, as I have already stated, has tried to apply this case in his favour, but when one goes deep into the matter, he finds that it rather goes against his contention than in his support. The same view, if I may say so with great respect, has been taken in a very recent decision of the Calcutta High Court in the case of Pyari Charan v. Monomathanath Bannerjee (88 C L J 27). It should be understood that it was a case which was coming before the learned Judge in the Original Side of the Calcutta High Court in respect of land situated at Bechu Chatterjee Street in the northern part of Calcutta. There the learned Judge has reviewed the entire case laws, if I may say so, up to date including the decision of Government of Bengal v. Alim‑ud -Din (57 C L J 41) and the decision of Das Gupta, J. in the case of Hem Chandra Dutta v. Haran Chandra (54 C W N 164), and I may say respectfully that Mr. Justice Sinha has rightly distinguished the Crimial case (57 C L J 41) where Sir George Rankin made the observations which in some way may favour Mr. Hassan's contention and there the learned Judge has rightly, in my opinion, dissented from the decision of Das Gupta, J. in the case of Hem Chandra Dutta v. Haran Chandra, (supra), where certain distinctions were sought to be made between kucha and pucca structures. The law on the subject has been succinctly put to the effect that the provisions of Order XXI, rule 35 of the Code do not give the Court any power to direct demolition of structures, either kucha or pucca and there is no general proposition which can be laid down that sub‑rule (3) of rule 35 or rule 95 of Order XXI contained any provisions for demolition of struc tures. I respectfully agree with those observations. The words "or do any other act necessary for putting the decree holder in possession" in sub‑rule (3) of rule 35 of Order XXI do not include demolition of structures. That being the position, I have no option but to reject the contention of Mr. Hasan and accept that of Mr. Rakshit. What Mr. Hasan intended to impress on me was that the word "person" was a mere illustration and he wanted me to hold that the word "person included removal of all obstructions and demolition of structures on the land. That will be a matter nut for adjudication by Court but a matter entirely within the competence of the Legislature. In other words, if I accept the contention of Mr. Hasan, I shall be guilty of legislating and providing in a statute certain causes omissus but this is not the function of the judiciary but of the Legislature. See Nalinakhya Bysack v. Shyam Sundar Haldar (AIR 1953 S C 148). Therefore, the contention of Mr. Hasan must be rejected. Now let us see whether the provisions of Order II, sub rule (2) of rule 2 of the Code of Civil Procedure is a bar to the present suit. In order to determine that, the main question that arises is what is the definition of a " cause of action". It is said that the cause of action is not defined in the Code of Civil Procedure. What I can remember is that in one of the earliest cases in England in the case of Jay Cooke and others v. Henry S. Gill and another ((1873) 8 C P C 107 (116)), Brett, J, observed as follows: " `Cause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse." This definition has been accepted in the Court of Appeal in the case of Read v. Brown ((1888) 22 Q B D 128), where Lord Eshar M. R. accepted the definition of the "cause of action" as laid down in the case of Cooke v. Gill, and Mr. Justice Lopes L. J. at page 133 observed as follows: "I agree with the definition given by the Master of the Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action." With this background let us see how for this doctrine as laid down in Order II, rule 2 of the Code of Civil Procedure has any bearing in the present controversy. Before I give the law as authoritatively laid down since the earliest time, I shall only refer to certain facts bearing on this question. It is an admitted fact that the plaintiff is a revenue sale‑purchaser and that the defaulting proprietor had his homestead on the land having an area of 13 acres; and that after the purchase by the plaintiff in 1929 he took symbolical possession in 1931, and ten years thereafter he brought a suit in which he prayed forgetting khas possession of the lands by removing the incumbrances created thereon either by the defaulter or through his laches. That suit was some how decreed ex parte and an abortive attempt was made for rehearing thereof. After that in November 1944, that decree was put into execution. The decree that was passed was in conformity with the pleadings which stated all the facts which I have already quoted and the prayer was that the plaintiff would get possession by removing the incumbrances. This was allowed and there was no scent of demolition of huts in the prayer portion of that plaint. From this it can be legitimately inferred that the plaintiff gave up his right to demolish the huts and if that was so, he brought himself clearly within the mischief of the provisions of sub‑rule (2) of rule 2 of Order II of the Code of Civil Procedure. The law in this regard is as old as the hills. I shall only refer to some of them; and I shall confine myself mainly to the decision of the Privy Council. In the case of Moonshee Buzloor Raheem v. Shumsoonnissa Begum and Jodoonath Bose v. Shumsoonnissa Begum ((1888) 22 Q B D 128), where the test that is to be applied for bringing in the bar under Order II, rule 2 will be found. The test that was applied was whether the cause of action in the previous suit was the same as that of the present one and that was one of the tests which was the guiding factor in determining whether Order 11, rule 2 would be a bar. The observations of the Privy Council in the case of Soorjomonee Davee v. Suddanund Mohapatter ((1873) Supp. Vol. of I A 212), is an instance to that effect, and there also the same principle has been laid down. If we then turn to the decision in the case of Krishna Behari Roy v. Brojeswari Chowdhuranee and others (LR2IA283), where at page 285 it is stated by Sir Montague E. Smith that the expression "cause of action", in section 2 of Act VIII of 1859 cannot be taken in its literal and most restricted sense; but it is to be construed rather with reference to the substance than to the form of the action. This case, in my opinion, very aptly applies to the present controversy. Then in the year 1888, Lord Watson in the case of Mst. Chand Kaur and another v. Partap Singh and others (L R 15 I A 156), laid down the principles under which the provisions of Order II, rule 2 of the Code of Civil Procedure would apply. There it was laid down that if the two causes of action were different there would be no justification of applying that principle. If my search is complete, I may say that in a very recent decision of the Privy Council in the case of Mohammad Khalil Khan and others v. Mahbub Ali Mian and others (75 I A121:PLD1948PC131). Sir Madhavan Nair on a review of all the English and Indian cases laid down the following tests for applying the principles under Order II, rule 2 of the Code of Civil Procedure as follows: "The principles laid down in the cases thus for discussed may be thus summarised: (1) The correct test in cases failing under Order II, rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit (Munshee Buzloor Raheem v. Shamsunnessa Begum). (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment (Read v. Brown). (3) If the evidence to support the two claims is different, then the causes of action are also different [Brunsden v. Humphrey (14 Q B D 141 (1884)]. (4) The causes of action in the two suits may be con sidered to be the same if in substance they are identical (Brunsden v. Humphrey). (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers . . . . . to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Mst. Chand Kaur v. Partab Singh). This observation was made by Lord Watson in a case under section 43 of Act of 1882 (corresponding to order II, rule 2), where plaintiff made various claims in the same suit." Applying the aforesaid principles, we shall have to see whether in the present case the plaintiff's cause of action to get a decree for demolition of the structures on the land is the same or a distinct one, I have already made it clear in deciding on the facts of this case as also in a previous paragraph of this judgment that there can be no doubt that the cause of action in the two suits are identical and, therefore:, the bar of Order II, rule 2 would apply and that would non‑suit the plaintiff. Mr. Hasan has tried to impress` on me that this will create a hardship to his client. Even if it does create hardship to his client, but if the facts have attracted any portion of any provisions in the Code, I have no option put to give effect to it and in that respect I shall only refer to the observations of Lord Buckmaster in the case of Kishan Narain v. Pala Mal and others (L R 50 1 A 115 (120)) which run thus: "There were, no doubt, good grounds of policy that caused the introduction into the Code of Civil Procedure of the provisions which, in the result of this case, will involve the appellant in some pecuniary loss, and it is the duty of the Courts to interpret and carry into effect those rules un‑influenced by the consideration of the individual loss that may be occasioned by disobedience of the pro visions." Therefore, on a consideration of the various aspects of the matter and reading the plaint and the decree in the previous suit, I can have no, other conclusion but that the present suit is clearly barred under Order II, rule 2 of the Code of Civil Procedure; and in that view of the matter the present suit must fail. The result, therefore, is that this appeal is allowed and the judgments and decrees of the Courts below are set aside and the plaintiff's suit for khas possession must be dismissed, but it should be understood that the plaintiff has got title to the suit land. In view of the conduct of the contesting defen dant, I am of opinion that the defendant must pay the costs which bad been decreed against him in the two Courts below; but here in this Court, the parties must bear their own costs. Leave under clause 15 of the Letters Patent is asked for and it is refused. K. M. A./M. S. Appeal allowed.