Second Appeal No.557 of 1989

24th July, 2014

Petitioner Counsel: Mr. V.S. GOKHALE
Respondent Counsel: Mr. S.M. RAILKAR

Cases Cited:
Narayan Das Vs. Jitendra Nath, AIR (1927) Privy Council 135 [Para 6,7,9]
Vallabdas Vs. Development Officer, AIR (1929) Privy Council 163 [Para 6]
Narayan Vs. Bholagir, 6 Bom. HC (AC) 80 D [Para 6,8]
Dr. K.A.Dhairyawan Vs. J.R.Thakur, AIR (1958) Sup. Court 789 [Para 6,9]
Mrs. Suman Damani Vs. Norman Joseph, (1986) Mh. RCJ 376 [Para 6]
Dinkar Vaidya Vs. Ganpat Gore, (1981) Bom. CR 431 [Para 6]
Ramkrishna Vs. Anand, 1998(4) ALL MR 491 =(1999) 1 Bom. C.R. 63 [Para 6,10]
Suthar Kanubhai Vs. Mahendrabhai, AIR (1983) Guj. 142 [Para 6]

JUDGMENT

JUDGMENT :- The trial Court passed a decree in the Regular Civil Suit No.45 of 1978 on 31.1.1984. The decree is that the plaintiff do recover the possession of the suit house of his share from the defendants. The defendants are granted two months time to vacate the suit house and they are perpetually restrained from obstructing plaintiff's vahiwat over his share in the suit house either by themselves or through any other person. The Civil Appeal No.42 of 1984 preferred by the defendants was dismissed by the appellate Court on 11.8.1989. Hence, both the defendants are before this Court.

2. The question involved before the Courts below was whether the plaintiff has any share in the suit house i.e., Gram Panchayat House No.768B standing on the Survey No.34/22 situated at Ubhadanda. Both the Courts have concurrently held that the plaintiff has established his 1/3rd share in the suit house. On 16.10.1989, this Court passed an order as under:

" Mr. Gokhale is heard. Admitted the substantial question of being whether in the facts and circumstances of the case, plaintiff (respondent no.1) could be said to have a share in the structure entitling him to claim partition and separate possession"

3. The matter was listed before this Court on 3.7.2014 for final hearing when the following order was passed:

" Put up this matter for final hearing on 10th July, 2014 by consent of the learned counsel for the parties.

2 It is made clear to the parties that the matter shall be heard on merits. Thereafter, the Court shall decide whether the substantial question of law arises in this second appeal or not and shall further decide course of action to be adopted. No further adjournment shall be granted."

The learned counsel were thereafter heard on 10.7.2014, 17.7.014 and 18.7.2014. Both the learned counsel were asked to produce authorities in support of their rival contentions.

4. With the assistance of the learned counsel for the parties, I have gone through a copy of the plaint. The prayer clause indicates that the plaintiff is claiming to be the owner of portion B of the Gram Panchayat House No.768 and the mandatory injunction is claimed directing the defendants, who are the real brothers to deliver vacant possession of the said portion to the plaintiff. The plaintiff has also claimed permanent injunction restraining the defendants from obstructing the plaintiff in the enjoyment of the portion of the House No.768. The house is standing on Survey No.34/22.

5. It is not in dispute that the plaintiff and his two brothers namely, the defendant nos. 1 and 2 have equal share in the land. The dispute is about the entitlement of the plaintiff to any share in the house, which is constructed on the land in question. The plaintiff does not dispute that he has not contributed anything towards the construction of the house and the defendant nos.1 and 2 were permitted to construct the house with their own funds. The house was constructed in the year 1977 in which the defendant nos.1 and 2 are residing. In the light of this undisputed factual position, the substantial question of law framed by this Court needs to be considered.

6. The learned counsel for the appellants submits that the concept of dual ownership is recognized in India and it has been accepted by the Courts in India divorce the contrary concept prevailing under the British law. He has relied upon the following decisions:

(1) Narayan Das v. Jitendra Nath reported in AIR (1927) Privy Council 135

(2) Vallabdas v. Development Officer reported in AIR (1929) Privy Council 163

(3) Narayan v. Bholagir reported in 6 Bom. HC (AC) 80 D

(4) Dr. K.A.Dhairyawan v. J.R.Thakur reported in AIR (1958) Sup. Court 789

(5) Mrs. Suman Damani v. Norman Joseph reported in (1986) Mh. RCJ 376

(6) Dinkar Vaidya v. Ganpat Gore reported in (1981) Bom. CR 431

(6A)Ramkrishna v. Anand reported in (1999) 1 Bom. C.R. 63 : [1998(4) ALL MR 491]

(7) Suthar Kanubhai v. Mahendrabhai reported in AIR (1983) Guj. 142

He submits that though, the share of the plaintiff in the land is not disputed, in view of the aforesaid position of law accepted by the Courts in India, the plaintiff is not entitled to get any share in the structure of the house constructed thereon. As against this, the learned counsel appearing for the respondent (Original Plaintiff) submits that the Hindu law does not recognise such a concept of dual ownership. He submits that none of the decisions relied upon by the learned counsel for the appellants are on the position under the Hindu law.

7. In the decision of the Privy Council in the case of Narayan Das Khettry v. Jatindra Nath Roy Chowdhry and others reported in AIR (1927) Privy Council 135 in which it has been held as under:

"This being so, the word "estate" must be taken to have a more limited meaning than it would have in English law and the Government's power of sale for arrears of revenue prima facie is limited to the land, which is subject to the payment to the Government of the annual revenue, and in respect of which the proprietor is entered in the General Register of Revenue paying Estates, and having special regard to the view held in India respecting the separation of the ownership of buildings from the ownership of the land, and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself, their Lordships are of opinion that in order to make a house erected upon the land, as well as the land itself, subject to the Government power of sale for arrears of revenue special words indicating the intention of the Legislature to make the building subject to sale would be necessary.

No such special words are to be found, and their Lordships are of opinion that the conclusion at which the learned Judges of the High Court arrived, viz., that the ownership of the building did not pass to the plaintiff by reason of the revenue sale was correct, although they are not prepared to adopt all the reasons which were advanced for that conclusion."

8. In the decision of this Court in Narayan bin Raghoji v. Bholagir Guru Mangir reported in (1869) Bombay High Court Reports Page 80, it has been held as under:

" White.- Story, in his work upon Equity Jurisprudence, section 388, says, " if a man, supposing he has an absolute title to an estate, should build upon the land, with the knowledge of the real owner who should stand by, and suffer the erections to proceed, without giving notice of his claim, he would not be permitted to avail himself of such improvements, without paying a full compensation therefor; for in conscience, he was bound to disclose the defect of title to the builder-Nay, a Court of Equity might, under circumstances, go further, and oblige the real owner to permit the person making such improvements on the ground to enjoy it quietly and without disturbance." [Couch, C.J.-That does not go to the extent of holding that the owner should be obliged to pay for the buildings. What is laid down is that the owner would not be permitted to avail himself of such buildings, that is, they should be allowed to be removed."

9. The aforesaid decision of the Privy Council in Narayan Das's case (Supra) has been followed by the Apex Court in the case of Dr. K.A. Dhairyawan and others v. J.R. Thakur and others reported in AIR (1958) SC 789. The relevant portion of which is re-produced below:

"6.....................In the case of Narayan Das v. Jatindra Nath 54 Ind App 218: (AIR 1927 PC 135) (A) the Privy Council approved the observations of Sir Barnes Peacock in the case of Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee 6 Suth WR 228 (B) to the following effect:

"We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it and is subjected to the same 'rights of property as the soil itself'. In the case of Vallabhdas Naranji v. Development Officer, Bandra, 56 Ind App 259: (AIR 1929 PC 163 ( C ), the Privy Council once again referred to Sir Barnes Peacock's observations as stated above. The Privy Council also quoted the following observation of Couch. C.J., in the case of Narayan v. Bholagir, 6 Bom HC (AC) 80 (D):

".........We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India that the party so building on another's land should be allowed to remove the materials."

10. In Ramkrishna Girishchandra Dode & Others v. Anand Govind Kelkar & Others delivered by this Court reported in (1999) 1 Bombay Case Reporter 63, it has been held as under:

"(B) .....The concept of dual ownership one of the land and the other of the structure on the land has been recognised by several decisions of this Court. The consistent view taken by this Court is that where the landlord get a decree for eviction of a plot of land against a tenant the licensee or a sub-tenant inducted by the tenant on the structure put by him has no right against the landlord. If therefore the landlord is entitled to get vacant possession of the land, he is entitled to evict the occupant in the said structure erected by the tenant, inasmuch as the occupant of the structure has no legal right against the landlord in so far as the land is concerned. The land must be put in possession of the landlord, free from any encumbrance whatsoever."

11. In view of the aforesaid position of law, it is apparent that the concept of the dual ownership, one of the land and the other in the building or structure standing thereon has been recognised and accepted by the Courts in India. The applicability of the principle would not be different even if it is a case between the real brothers and the law as has been laid down by the Courts in India would apply to the dispute between the real brothers also. Merely because, the plaintiff has share in the land beneath the building, it does not automatically follow that he would have share in the building constructed also. The plaintiff does not dispute that he has not contributed anything for construction of the house on the land in which he has share. It is also not in dispute that he has permitted his brothers to construct building/house with their own funds. No objection was raised for such construction. Therefore, it has to be held that though the plaintiff has share in the land, he does not have any share in the structure or building erected thereon. The Courts below, therefore, have committed an error of law holding that the the plaintiff is entitled to share in the building constructed on the land belonging to the plaintiff and the defendants.

12. The plaintiff is not entitled to a partition and possession of the suit house. The substantial question of law is answered accordingly. The second appeal is allowed. The judgment and decree passed on 31.1.1984 by the trial Court in the Regular Civil Suit No.45 of 1978 as has been confirmed in the Civil Appeal No.42 of 1984 by the appellate Court on 11.8.1989 is hereby quashed and set aside and the suit filed by the plaintiff is dismissed. There shall be no order as to costs.

Appeal allowed.