Mariappa Thevar v. Kaliammal — 1970 DIGILAW 145 (MAD)

Judgement JUDGMENT :-- The defendant in O. S. No. 1341 of 1963 on the file of the District Munsif, Coimbatore, is the appellant in this second appeal. The said suit was filed by the respondent herein claiming Rs. 2870 as arrears of rent from the defendant in respect of his occupation of the suit premises. This claim of the plaintiff has been upheld by the courts below and the same is not in dispute in this second appeal. In the written statement filed by the defendant, he made a counter claim in a sum of Rs. 7870 as the value of the standing crops on the date of delivery of the properties through court. The trial court found that the defendant was entitled to claim the value of the crops like sugar-cane, cholam, plantains, chilis, brinjals, tomato and coconut saplings amounting to Rs. 5770, as also a sum of Rs. 100 as value of the materials and coconuts left on the property when he vacated the property and after adjusting the amount of Rs. 2870 as arrears of rent it decreed the counter claim in a sum of Rs. 3000. 2. On appeal by the plaintiff, the lower appellate court, however, came to the conclusion that the defendant is not entitled to claim the equitable relief by way of improvements as he himself had brought about the termination of the lease by his own default, and that in any event the evidence regarding the value of the crop as on the date of eviction adduced by the defendant was not sufficient to enable the court to arrive at the valuation. In the view it had taken the lower appellate court has allowed the appeal and dismissed the defendant's counter claim towards the value of the crops and improvements. The second appeal is directed against the said decision of the lower appellate court. 3. The following facts are not in dispute. The defendant was a tenant under the plaintiff in respect of the suit properties from the year 1958. On an application filed by the plaintiff for eviction of the defendant on the ground that he had defaulted in payment of the rents, the Revenue Divisional Officer, Coimbatore, passed an order of eviction under Ex. A. 6 dated 5-9-1963. The defendant was a tenant under the plaintiff in respect of the suit properties from the year 1958. On an application filed by the plaintiff for eviction of the defendant on the ground that he had defaulted in payment of the rents, the Revenue Divisional Officer, Coimbatore, passed an order of eviction under Ex. A. 6 dated 5-9-1963. Against the said order of eviction the defendant filed a revision petition to this court in C. R. P. 1470 of 1963 and this Court by its order Ex. A. 11 dated 8-11-1963, rejected the same. Few days before this court dismissed his revision, the defendant filed also a suit O. S. 996 of 1963 on the file of the District Munsif Coimbatore, for an injunction restraining the plaintiff from evicting him from the suit property but the said suit was also dismissed on 19-11-1963. In pursuance of the order of eviction passed by the Revenue Divisional Officer the defendant was actually evicted from the suit property on 18-11-1963. The plantiff claimed Rs. 2870 as arrears of rent in this suit upto 18-11-1963 as the defendant was in possession of the property upto that date. The defendant had claimed Rs. 7870 in his counter claim for the value of the standing crops after adjusting, the said arrears of rent. The defendant's counter claim was based on the fact that there were crops such as sugarcane crop in an extent of 7 acres valued at Rs. 5000 plantain crop worth Rs. 1500 in addition to the crops such as cholam, tomato, brinjal etc, in portions of the suit lands as also certain coconuts and coconut saplings. On 5-12-1963, long before the trial of the suit, the defendant applied for appointment of a Commissioner to note the improvements made by him and to assess the value of the crops in the property and a Commissioner was appointed ex parte and he inspected the property on 9-12-1963. He submitted a report Ex. C. 1 on 16-12-1963 wherein he valued the improvements and the crops standing on the property as on 8-12-1963 at Rs. 6915. As a matter of fact the defendant's written statement was filed later to the said Commissioner's report, making a counter claim of Rs. 8020 for the value of the improvements and the standing crops as on the date of delivery. After setting off a sum of Rs. 6915. As a matter of fact the defendant's written statement was filed later to the said Commissioner's report, making a counter claim of Rs. 8020 for the value of the improvements and the standing crops as on the date of delivery. After setting off a sum of Rs. 2870 being the arrears of rent due by him, he restricted his claim to Rs. 5000 as the excess value of the improvements and standing crops. The plaintiff filed a reply statement denying his liability to pay the alleged value for the crops and improvements on the suit property. The plaintiff also applied for the appointment of a fresh Commissioner for making local inspection and for report as to the value of the improvements and standing crops. The plaintiff complained that the Commissioner appointed at the first instance did not know much about agriculture and his report cannot be accepted. But the trial court appointed the same Commissioner to inspect the suit property and to report as to the value of the improvements and standing crops with the help of a sugar-cane expert as the main crop that was said to be on the land was sugar-cane. Accordingly the Commissioner inspected the property over again along with the Agricultural Demonstrator (sugar-cane) Coimbatore on 2-7-1964-. The sugar-cane expert gave the report Ex. C. 3 of his inspection to the Commissioner on 3-7-1964 and on that basis the Commissioner filed a report Ex. C-2. At the trial, the plaintiff's husband was examined as P. W. 1 and none was examined on the side of the defendant. 4. The trial Court went into the question as to whether the defendant was, in law, entitled to the value of the improvements and the standing crops and held in the affirmative. The trial court accepted the report of the Commissioner and that of the sugar-cane expert and valued the standing crops on the property at Rs. 770 and the value of the materials at Rs. 100. From the said value the amount due by the defendant as arrears of rent to the plaintiff was deducted and the defendant was given a decree for a sum of Rs. 3000. 5. 770 and the value of the materials at Rs. 100. From the said value the amount due by the defendant as arrears of rent to the plaintiff was deducted and the defendant was given a decree for a sum of Rs. 3000. 5. The lower appellate court, however, took a different view on both the points, that is, as to the liability of the plaintiff to pay for the value of the crops as also the quantum of the value of the crops on the property. The lower appellate court has taken the view that as a matter of law the plaintiff will not be liable to pay for the alleged standing crops and that the defendant will not be entitled to claim the value of the crops even on equitable grounds, for he had brought about the termination of the tenancy by his own fault. As regards the value of the crops, the lower appellate court expressed the view that the finding of the trial court based mainly on the Commissioner's report cannot be accepted and that the opinion of the Commissioner and the sugar-cane expert regarding the valuation of the crops cannot, by themselves, prove the case without any further corroboration. It also noted that on the basis of the Commissioner's report, sugarcane crop was 5 months old at the time of deliveiy while the report of the sugar-cane expert is to the effect that at the time of the inspection on 3-7-1964 sugar-cane crop was 7 months old, which would mean that the sugar-cane, crop could not have been there on 18-11-1963 when delivery was effected. The sugar-cane expert has of course estimated the age of the crop on the southern side as ten months which means that that crop was only six weeks old at the time of delivery. According to the lower appellate court what will be the value of the six weeks' old sugar-cane crop is very problematical as sugar-cane will yield only after 12 months. As regards plantain crop, the Commissioner has stated in Ex. C. 1 that there were about 600 plantains likely to yield in six weeks time. According to the lower appellate court what will be the value of the six weeks' old sugar-cane crop is very problematical as sugar-cane will yield only after 12 months. As regards plantain crop, the Commissioner has stated in Ex. C. 1 that there were about 600 plantains likely to yield in six weeks time. When he visited the property again in July 1964, he finds that the plantains have begun yielding which means, that the crop which he has seen in December 1963 was only a few months old and the value of such a crop would be worth practically nothing. As regards 31 coconut saplings, which have been valued by the Commissioner at Rs. 150, the lower appellate court felt that the defendant had no consistent case in regard to the same and that his claim on this account has to fail. 6. In this second appeal, the learned counsel for the appellant (defendant) contends that the lower appellate court was in error in holding that the defendant is not entitled to the value of the crops and in ignoring the reports submitted by the Commissioner as well as the sugar-cane expert fixing the value of the crops as on the date of delivery. First of all the learned counsel contended that Order 26 Rule 10, C. P. C. treats the report of the Commissioner as evidence in the case and this has been overlooked by the lower appellate Court when it said that the non-examination of the sugar-cane expert and the Commissioner would make me reports inadmissible in evidence. Though I agree with the learned counsel for the appellant that the reports of the Commissioner and the sugar-cane expert are admissible in evidence as per the provision in Order 26, Rule 10, Civil Procedure Code, I am not in a position to agree with him that the lower appellate court has overlooked this obvious provision. The lower appellate court has not rejected the reports of the Commissioner and the sugar-cane expert as inadmissible in evidence. What it says is that the reports by themselves do not prove the case and in the matter of valuation of the sugar-cane crop, the examination of the expert or the Commissioner in Court would be essential. The lower appellate court pointed out that there is some inconsistency between the report of the Commissioner and the sugar-cane expert. What it says is that the reports by themselves do not prove the case and in the matter of valuation of the sugar-cane crop, the examination of the expert or the Commissioner in Court would be essential. The lower appellate court pointed out that there is some inconsistency between the report of the Commissioner and the sugar-cane expert. I am inclined to agree with the view taken by the lower appellate Court that the reports by themselves cannot prove the case put forward by the defendant. Though the Commissioner's report is admissible in evidence, the evidentiary value of such a report has to depend on the nature of the report. If the Commissioner appointed by the Court reports about the existence or otherwise of certain physical features and materials found on the premises, its evidentiary value is considerable. But the Commissioner has expressed an opinion on the materials inspected and found by him at the time of the inspection, the evidentiary value of his opinion as to its value or its ownership cannot straightway be accepted by the Court without a further corroboration or without the Commissioner or the sugar-cane expert going into the box and explaining the basis for their opinion on the valuation. The lower appellate court says that it would not at all be safe to act only on the basis of the reports of the Commissioner and the sugarcane expert. I am also inclined to think likewise. How the Commissioner as well as the sugar-cane expert valued the sugar-cane crop which was only 5 weeks old at the time of the delivery is not clear from their reports. They have proceeded from the yield of a normal crop to estimate the value of the tender crop at the time of delivery. Things like fertility of the soil, availability of adequate supply of water and so many other factors have also to be considered while embarking on a valuation of a tender crop such as sugar-cane as well as plantain. Unless the Commissioner or the sugar-cane expert has explained the basis of their valuation and that is subjected to cross-examination by the parties, the evidentiary value of the report as to valuation is considerably less. Unless the Commissioner or the sugar-cane expert has explained the basis of their valuation and that is subjected to cross-examination by the parties, the evidentiary value of the report as to valuation is considerably less. As already stated the defendant has not gone into the box to speak about the age of the crop that was standing on the land at the time of the delivery and expenditure which he has incurred to raise such crops. It is common knowledge that much time, labour and money have to be spent only at the later and final stages of the crop when it is ripe for harvest. Even if the sugar-cane and the plantain crops have been taken over by the plaintiff as per delivery order, it would yield only after they had reared the crop for a considerable period. In those circumstances, it is not possible to work out the value of the tender crop that stood on the land by working out a proportion from the total yield, having regard to the age of the crop on the date of delivery and the age of the full crop harvested. I do not therefore consider that the lower appellate Court is in error in not accepting the value given by the Commissioner and the sugar-cane expert. 7. The learned counsel for the appellant has also questioned the correctness of the view of the lower appellate court that the defendant is not entitled to claim the value of the crops as an equitable relief. It is said that the view of the lower appellate court that the principle contained in Section 108 (1) of the Transfer of Property Act applies to the facts of this case as a principle of equity and good conscience is not tenable in view of the decision of the Supreme Court in Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228 wherein it has been laid down while dealing with Section 108 (j) of the Transfer of Property Act that :- "The law in India and England on this subject is not the same as it cannot be said that this sub-section enacts or enunciates any general principle of equity. Parts of Sections 109, 110 and 111 contain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. Parts of Sections 109, 110 and 111 contain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. In our judgment therefore, the statement of this decision that Sections 105 to 116 of the Transfer of Property Act are founded upon principles of reason and equity cannot be accepted either as correct or precise. Of course, to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good conscience they are applicable also to cases not governed by the Act." It was also said that even if equitable principles were to apply for invoking the provisions of Section 108 (j) of the Transfer of Property Act, Section 114 provides for relief against forfeiture for non-payment of rent and that in the case on hand it cannot be said that the defendant had forfeited merely because of his default in payment of rent, his equitable right to get the value of tile crops. He also referred to a passage in Hanbury's Modem Equity, 8th Edn., at page 51 which is as follows- "Breach of covenants in leases : The principle upon which equity proceeded was that it would give relief against forfeiture for non-payment of rent, for interest upon its arrears would be a sufficient compensation for the breach of the covenant to pay it". The learned counsel for the appellant urges that the fact that the defendant was in arrears of rent which had resulted in his eviction from the leasehold premises will not deprive him of his right to get the value of the crops and the principle contained in Section 108 (i) of the Transfer of Property Act cannot be invoked as the provisions of the Transfer of Property Act cannot be applied to agricultural leases. The contention of the learned counsel has proceeded on the basis that the defendant is, in equity, entitled to claim the value of the crop that was on the land at the time he vacated the suit property that such a right cannot be defeated by the provision contained in Section 108 (i) of the Transfer of Property Act or on any other ground and that the mere fact that he fell in arrears of rent will not disentitle him to the said equitable relief. 8. 8. On the other hand, the learned counsel for the respondent contends that the crops on the lands are not improvements and that either in law or in equity the defendant is not entitled to claim the value of the crops. He submitted that neither the common law nor the customary law in England recognised any such right and it is only by the provisions of the Agricultural Holdings Act, 1947 the standing of crops was treated as improvements and the right to recover the costs of the crops was recognised in certain circumstances under the provisions of that Act. In this connection he referred to a passage in Paragraph 2635 in volume I of Woodfall's Landlord and Tenant', 26th Edn. at page 1837, to the effect that- "At common law an agricultural tenant had no rights to any compensation for any improvements or acts of husbandry. The common law implies a contract on the part of an agricultural tenant to cultivate in a husband like manner according to the custom of the country, so that a landlord can at common law recover damages from a tenant for doing less than sufficient on the land, but it implies no contract on the part of the landlord to compensate the tenant for doing more than sufficient, or even to pay him for the seeds and labour of the last year of the tenancy." 9. The learned counsel relied on an early decision of this Court in Ramalinga V. Samiappa, (1890) ILR 13 Mad 15, where a mortgagee in possession who brought the property to sale in execution of his decree was held not entitled to recover from the execution purchaser the value of the standing crops on the land On the date of the sale. Muttuswami Ayyar J. expressed that- "the ordinary rule is that the right to the growing crop will pass by a sale of the land without express mention .... Nor has the doctrine of emblements any application in this case. A mortgagee is not one of the persons entitled to emblements and cannot as such rely either on Section 51 or Section 108 clause (i) of the Transfer of Property Act, which only declared the preexisting law on the subject. Nor has the doctrine of emblements any application in this case. A mortgagee is not one of the persons entitled to emblements and cannot as such rely either on Section 51 or Section 108 clause (i) of the Transfer of Property Act, which only declared the preexisting law on the subject. Nor is this case within the equity of the rule of law concerning emblements which are not allowed even to tenants who either know when their term is to cease or by their own negligence or misconduct allow their interest to determine between the time of sowing and of harvest" 10. On the basis of this decision, the learned counsel for the respondent urges that the defendant (appellant) is not entitled to claim the value of the crops either on the basis of Section 51 or on the basis of Section 108 (i) of the Transfer of Property Act. 11. On a due consideration of the matter, I am of the view that the defendant is not entitled to claim the value of the crops alleged to have been there on the suit property at the time of the delivery. It is well settled that normally when a person is law-fully evicted from land he cannot lay claim to the standing crops on the land at the time of eviction. But it is, however, subject to some exceptions. Under Section 51, a transferee of the immovable property who is evicted by a person having better title is entitled under certain circumstances, to crops planted or sown by him and growing at the time of eviction. Under the Roman Civil Law, a tenant was entitled to remove all fixtures he had attached to the leasehold property where it could be effected, without any material injury to the property. Under the English law the principle was 'quicquid plantatur solo, solo cedit' (whatever is affixed to the soil becomes part of it), the rule being relaxed only in respect of certain kinds of tenant's fixtures and not generally. The strict rule of English law was never applied in our country. Under the English law the principle was 'quicquid plantatur solo, solo cedit' (whatever is affixed to the soil becomes part of it), the rule being relaxed only in respect of certain kinds of tenant's fixtures and not generally. The strict rule of English law was never applied in our country. In Thakor Chunder Poramanick v. Ramdhone Buttacharjee, (1866) 6 Suth WR 228 (FB), Sri Barnes Peacock observed as follows :- "We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil, and we 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 to remove the materials restoring the land of the State in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil - the option of taking the building or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess". 12. Section 108 clause (h) indicates in substance the principle of Roman Civil Law and the pre-existing law of this land as interpreted by the Full Bench in (1866) 6 Suth WR 228. Under the common law of England a tenant for an uncertain period has under the name of "emblements, the benefit of growing crops of such species as ordinarily repay the labour by which they are produced within the year in which that labour is bestowed. A right is given by law, in certain cases to the tenant of an estate of uncertain duration which has unexpectedly determined, without any fault of such tenant, to take the crop's growing upon the land when his estate determines. A right is given by law, in certain cases to the tenant of an estate of uncertain duration which has unexpectedly determined, without any fault of such tenant, to take the crop's growing upon the land when his estate determines. This was the common law in India also Section 108 (i) in substance indicates the principles of the common law as stated above and furnishes exceptions to the general rule that a tenant cannot claim the value of the crops on the land at the time of eviction. Tenant's right to the standing crop under the common law which has been recognised in Section 108 (i) cannot obviously be applied to cases where the termination of the tenancy is brought about by the lessee's own negligence or misconduct as has been held by Muttusami Ayyar, J., in (1890) ILR 13 Mad 15. As submitted by the learned counsel for the respondent, crops cannot be treated as improvements and it is not possible to invoke the common law as indicated in Section 108 clause (h) of the Transfer of Property Act for claiming the value of the crops on the land at the time of delivery. 13. The provisions of the Madras Cultivating Tenants Protection Act, 1955, also throw some light on the question of entitlement of the tenant to the value of the standing crop. Section 4-A dealing with the landlord's right to resume land for personal cultivation provides that the Revenue Divisional Officer may, in bis discretion, postpone the restoration, of the applicant to possession of the land, until any crop which is being grown thereon at the time when the order is passed, has been harvested. In cases where eviction is sought on other grounds such as default in payment of rent, the Act does not enable the tenant either to remove the standing crop or to claim the value of the same from the landlord. In cases where eviction is sought on the ground that the land is required for personal cultivation, the Revenue Divisional Officer is authorised by the statute to postpone the eviction and restoration until the standing crop is harvested by the tenant. In cases where eviction is sought on the ground that the land is required for personal cultivation, the Revenue Divisional Officer is authorised by the statute to postpone the eviction and restoration until the standing crop is harvested by the tenant. In such cases the termination of the tenancy is not brought about by the fault of the tenant and as such he has been given a right to ask the Revenue Divisional Officer to defer delivery and restoration until the crops are harvested. No such right is recognised by the Act in cases of eviction for default in payment of rent, that is, where the tenant brings about the termination of the lease by his own fault. I am of the view that the provisions of the Madras Act, 25 of 1955, recognise the equitable principle that where a tenant of an estate is evicted not due to his fault, he might take the benefit of the crops he had raised, and growing on the land demised and that if a tenant of an estate even though of an uncertain duration brings about termination of the lease by his own fault he will not be entitled to claim the benefits of the standing crops and the normal rule that a person lawfully evicted from the land cannot claim the value of the standing crops on land at the time of eviction would have to be applied in cases where the eviction was caused by the fault of the tenant. Having regard to the circumstances of this case, where the order of eviction was occasioned by the fault of the tenant, he is in my opinion disentitled to claim the benefit of the standing crops on the land at the time of eviction. As pointed out already the eviction order was passed by the Revenue Divisional Officer under Ex. A-6 dated 5-9-1963 and as per report of the sugar-cane expert the only substantial crop, that is, sugar-cane seems to have been planted after the eviction order. The defendant, who was in arrears of rent and which has resulted in an order of eviction, cannot be entitled to claim the benefit of the standing crops which he had planted from the date of eviction till the date of delivery. The defendant, who was in arrears of rent and which has resulted in an order of eviction, cannot be entitled to claim the benefit of the standing crops which he had planted from the date of eviction till the date of delivery. As pointed out by Muttusami Ayyar, J., in (1890) ILR 13 Mad 15, the tenant cannot be allowed to have benefit of the standing crop if he had either known when the term of the lease is to cease or on his own negligence or misconduct allowed his interest to determine between the time of sowing and before harvest In the view I have taken on both the points for determination, I am constrained to dismiss the second appeal and it is accordingly dismissed, but, in the circumstances, without costs. No leave. Appeal dismissed.