Janaki Amma J.
1. The appellant is the plaintiff in O. S. No. 47 of 1972 of the Subordinate Judge's Court, Palghat, which was a suit filed by him for compensation in respect of 2.03 acres of land in R. S. 41 B/2B part (indicated in some proceedings as R. S. 41B/2B1) of Muthalamada Village, Chittur Taluk.
2. The Meenkara Reservoir Project was sanctioned by the Government as per proceedings dated 13-4-1956. Certain items of property in Muthalamada Village of Chittur Taluk were acquired for the purpose. R. S. 41B/1 held by the plaintiff under the Vengunad Kovilagam fell within the submersible area of the project was one of the items acquired. The plaint schedule item lies contiguous to the item acquired. The appellant planted coconut trees, arecanut trees and plantains in the above area. When the Reservoir Project began functioning the abovesaid area got submerged in water. According to the appellant, as the land was required for extending the submersible area of the Meenkara Dam, he surrendered possession thereof on 1-7-1961 on the understanding that he would be paid compensation for the land and the improvements. Subsequent investigation by the Revenue Authorities disclosed that the plaint schedule property though in the possession of the appellant was registered as river puramboke and that it was by way of encroachment that he made improvements therein, Proceedings were therefore initiated as L.C. 196/62 under the Kerala Land Conservancy Act. Since the Revenue Officialsgot the impression that the occupation of the appellant was under the bona fide belief that the land formed part of his patta land, proceedings were initiated for acquiring the improvements. A notification was issued on 29-9-1964 under S.3(1) of the Land Acquisition Act for the abovesaid purpose. This notification was however cancelled by another notification dated 9-7-1965 under orders of the Government. Fresh proceedings were initiated as L.C. 126/1966 under the Kerala Land Conservancy Act. Thereupon, the appellant filed O.P. No. 3261 of 1967 before this Court for a writ of certiorari to quash the cancellation notification dated 9-7-1965 and also for a writ of mandamus directing the respondent State to take necessary proceedings, under the Kerala Land Acquisition Act to acquire the land in question and the improvements thereon. This petition was dismissed on 5-2-1970 with a direction that the dismissal would not preclude the appellant from taking other appropriate proceedings for vindication of his rights. This was followed by proceedings of the Tahsildar, Chittur, imposing prohibitory assessment and fine based on the encroachment and directing the appellant to vacate the property. It was while an appeal against the order was pending that the appellant filed the suit OS. No. 47 of 1972 claiming a consolidated amount of Rs. 50,000/- towards the value of the land and the improvements thereon, with future interest and costs.
3. The appellant averred in the plaint that the property belonged to him as part of the property held by him in verumpattom right under the Vengunad Swaroopam of which the Head and Manager is the Raja of Kollengode. The plaint proceeded to say that the property abuts the Meenkara River which is a mountain stream, which, throughout its course, is both non tidal and non navigable. Part of the river which abuts the plaint schedule property forms the boundary between Malabar District and the Pollachi Taluk of Coimbatore District in Tamil Nadu State. The said property lies contiguous to the appellant's other lands situated in R.S. 41B/1. It was being considered by him as part of his own property and was planted with coconut and arecanut trees and plantains. The appellant's case is that the property is an accretion from out of the river bed as a result of natural processes. Such accretion being gradual, latent and imperceptible during its progress, the land resulting therefrom ceased to be a portion of the river or its bed, and became part and parcel of the appellant's patta land lying contiguous thereto, which is being held by him on a non evictable title with fixity of tenure under the jenmi Vengunad Kovilagam. The appellant and his predecessors in title were in possession of the land bona fide believing that they had got right to the property. It was while be was in possession that the Public Works Department took over possession of the patta land and also the plaint schedule property alleging that they had power to do so forexpanding further south the submersible area of the Reservoir appurtenant to the Meenkara Dam. On account of the subsequent water logging the improvements in the property got perished. The appellant claimed that he was entitled to compensation in respect of the value of the land as also of the trees therein.
4. In the written statement filed by the State, it was admitted that there were improvements in the property which were effected by the appellant. But the State denied the claim of ownership put forward by the appellant. The property having R. S. No. 41B was lying close to the Meenkara River. This was sub divided into two portions. R. S. No. 4IB/1 was registered in the name of the riparian owner while R. S. No. 4IB/2 was registered as a river puramboke. The claim that the said property was accretion to the appellant's patta land was denied. The proceedings under the Land Acquisition Act were dropped because the property being river puramboke belonged to the Government and the Government was not obliged to initiate the said proceedings. On the other hand, the appellant being an encroacher without valid title was bound to surrender possession of the land and the improvements therein. The State also contended that the suit was barred by limitation and also in view of S.20A of the Land Conservancy Act.
5. The Trial Court held that the suit property was Government puramboke land. The allegation that there was delivery of possession of the lard on 1-7-1961 was found against. The claim of the appellant for value of improvements was also refused. The suit was held to be barred by limitation and also under S.20A of the Land Conservancy Act. It was, accordingly, dismissed. It is against the above decree that the present appeal is fried.
6. The stand taken by the appellant in this Court is that the Meenkara River being a non tidal and non navigable mountain stream, the appellant as a riparian owner is entitled to the plaint schedule property. At any rate, the plaint schedule property, according to the appellant, must be considered to be an accretion to the patta land of the appellant. For that reason also the appellant should be held to be the owner thereof. That the improvements in the property were admittedly made by him would show that the appellant has been in possession of the property for a considerably long time. Such possession could have been only as owner of the property and therefore he is entitled to value of the land and improvements. In any case the court below should have allowed him value of improvements.
7. A long catena of cases were relied upon by the appellant in order to show that as the owner of the land lying contiguous to the plaintschedule property he got right of ownership in the disputed properties also either as a riparian owner or by way of accretion. However it is not necessary to refer to the rulings cited because on the facts and circumstances of the case the appellant is precluded from claiming ownership of the disputed land. A claim for ownership of the land either as accretion to patta land or as a riparian owner is not seen put forward by the appellant, when proceedings were first initiated against him. Ext. B1 is a petition filed by him before the Tahsildar, Chittur, on 27-8-1962, wherein he stated that he planted coconut trees, arecanut trees and plantain in an area of 4 acres in Sy. No. 41/B, that notice under S.9(3) of the Land Acquisition Act was served on him only in respect of 1.65 acres and that he came to know that the balance portion was not included in the notice because it was puramboke land. He proceeded to say that there were 203 coconut trees in the area excluded, that he did not know that it was puramboke land and that he was under the impression that it was part of his lease hold property. His request in the petition was that the improvements effected by him in the Government puramboke land should be acquired and the value thereof should be paid to him. Ext. B9 is a statement given by him before the Revenue Inspector, Kollangode on 10-1-1963. Therein he stated that he came to know that the land he was occupying belonged to Government, only after the land acquisition proceedingsin respect of his patta land started. He reiterated his request for grant of value of improvements. There is also a categoric statement that he was prepared to surrender the land wherein the improvements stood, free of compensation. Ext. B1 and Ext. B9 are admitted by the appellant. Even in Ext. A4 the notice sent by him under S.80 of the Code of Civil Procedure his claim was confined to the value of improvements as is clear from the following extract:
"Though my client is entitled to claim compensation in respect of the land bearing R. S.No. 41B/2B1, now included in the waterlogged area of the reservoir appurtenant to the Meenkara Dam and lying contiguous to his patta land on the east and north and was an accretion thereto, he is, without prejudice, prepared to waive his claim to the land R. S No. 41B/2B1, of an extent of 2.03 acres which stands registered as 'river poramboke' in the revenue records, provided be is given compensation for the improvements which existed on the site when the Government included the said site in the submersible portion of the reservoir.............................................My client is entitled to compensation in respect of all improvements which were existing at the time when the Government occupied the land and claims the same. My client estimates the reasonable amount of compensation which would be payable to him at Rs. 50.000/- (Rupees fifty thousand) and claims the said amount, together with interest thereon at 6 per cent per annum fromthe date when the Government went into occupation of the premises by rendering it liable to submersion.
10. The value of the relief sought is Rs. 50,000/- (Rupees fifty thousand) and interest thereon as claimed above.
11. Finally, I may state that if the compensation claimed herein for the improvements which existed in the said site is not paid to my client within two months of the receipt of this statutory notice of suit, appropriate legal action will be taken against Government seeking adequate relief, at the risk of Government as to costs and consequences."
It is contrary to the above stand that the appellant included a claim for the value of the 2.03 cents of land in paragraph 7 of the plaint and put the consolidated value of the reliefs at Rs. 50,000/-. It is significant that no amount is mentioned in the notice as the value of the land. There is thus a substantial variation in the relief claimed in the notice under S.80 CPC. and the reliefs in the suit. This discrepancy would have been sufficient to non suit the appellant. (See Amarnath v. Union of India (AIR 1963 SC 424)). We do not however do so in view of the fact that such a contention is not seen taken in the written statement and no issue was framed on the point.
8. Though a claim for the value of the land based on ownership thereof has been included in the plaint and a contention was raised that the appellant was entitled to the land either as a riparian owner or as an accretion to his leasehold land, no attempt has been made by him to substantiate the claim. The only witness examined on the side of the appellant was himself. In his cross examination he was not even in a position to say to what survey number his suit related. He could not say where Sy. No. 41/BI or Sy. No. 41/B2 lies or whether these survey numbers were included in the lease. Though he would say that there was a change in the course of the river he was not in a position to mention when it took place. The appellant has not produced the document of lease under which he claimed the adjacent property. The document if produced would have shown whether the river was one of the boundaries of the property leased. If on the other hand the disputed property is shown as a boundary that fact is sufficient to show that that property was in existence on the date of the lease. That would belie the case of the appellant that the property is an accretion to the lease hold property. As it is, the disputed property is registered as river puramboke in the settlement records. Hence it must have been in existence at the time of the revenue settlement. If the appellant or his predecessors were in possession of it at the time of the revenue settlement, it was unlikely that it would have been registered as river puramboke.
9. Mention is made in the plaint about an admission in the counter affidavit in OP. No. 3261 of 1967, that the land was formed as an accretion out of the river bed as a result of natural process. But the admission is silent about the time when the land was formed. There is no admission that the land was formed after the lease to the appellant. Nor was it conceded that the land formed part of the leasehold property of the appellant On the other hand, the categoric statement in the counter affidavit, which is marked as Ext. A2 is that the land belonged to the State and the appellant was an encreacher. Therefore, the admission referred to does not advance the case of the appellant.
10. The abovesaid reasons are sufficient for rejecting the appellant's claim that he is entitled to compensation for the value of the land.
11. The further question is whether the appellant is entitled to compensation for the trees planted by him after he occupied the land. At one stage, as already noticed, there was a move by the revenue authorities to acquire the trees by initiating proceedings under the Land Acquisition Act. but it was dropped as per orders of the Government. The Government took the stand that the appellant having encroached over the land was liable for the penalty provided in the Kerala Land Conservancy Act and was not entitled to value of the trees. Under S.4 of the Kerala Land Conservancy Act beds and banks of rivers are 'porombokes' and are the property of the Government. It has come out that proceedings were taken against the appellant under the Act for unauthorised occupation of poromboke land. Besides an order for summary eviction, prohibitory assessment has also been imposed on him. It was when the matter was pending in appeal that the suit was filed. There is no case for the appellant that the said appeal has been decided in his favour. Once proceedings are initiated for summary eviction a civil suit will be barred under S.20 of the Act except on the ground that the land in respect of which the order is passed is not the property of the Government. It was probably to overcome this provision that the appellant included in the plaint a claim for value of the land in spite of the fact that such a claim had been omitted in the earlier correspondence and the notice under S.80 CPC.
12. The question then arises whether the appellant having failed to establish his ownership in the land is entitled to the value of the trees. The claim is mainly based on the plea that the appellant effected the improvements bona fide believing that he was the owner of the property and therefore be has a right to get the value thereof when the Government took them over. The suggestion is that the principles underlying the provisions in the Kerala Compensation for Tenants Improvements Act, 29 of 1958, should be applied in the case of the appellant. But S.4 of the Kerala Compensation for Tenants Improvements Act has no application to tenants holding lands under the Government. The first proviso to S.4 also mentions that nothing contained in the section should be construed as affecting the provisions of the Kerala Land Conservancy Act, 1957. Therefore, even assuming that the appellant planted the trees in all bona fides he cannot claim the status of a tenant under Act 29 of 1958 and as such entitled to value of the trees.
13. It is only appropriate to refer to S.11(1) of the Kerala Land Conservancy Act, which deals with liability of unauthorised occupant of Government land to summary eviction, forfeiture of crops etc. Under the said provision, any crop or other product raised in the land would be liable for forfeiture at the time of eviction. Any building or other structures erected or anything deposited on the land if not removed on notice being sent, would be liable to forfeiture. Though the section does not specifically refer to trees on the land, on general principles the rule in relation to other improvements should apply to the case of trees also. It may be that the rule, what is attached to the soil belongs to the owner of the soil may not be applicable to India. That does not mean that a trespasser who plants trees on a property against the will of the owner of the soil and behind his back has a right to get the value thereof. S.31 of the Transfer of Property Act, which confers on a transferee of property with defective title the right to get value of improvements made by him bona fide has no application in the case of trespassers.
14. A provision analogous to S.11(1) was there in S.9 of the Travancore Land Conservancy Act. In K. C. Alexander v. State of Kerala (AIR 1973 SC 2498) a case under the Travancore Act, the question arose whether a person who unauthorisedly occupied Government land would be entitled to the value of trees planted by him, on being summarily evicted. The Supreme Court held that though the words "other products raised on the land" in S.9 did not include trees, the unauthorised occupier had no right to get value of the trees. The relevant portion of the judgment reads:
'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 man's 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 maxim of the English law "quicquid plantatur solo solo credit" i.e., whatever is affixed to the soil belongs to the soil, is notapplicable in 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 identical reasoning would apply in the case of the appellant who has already been summarily evicted under the provisions contained in the Kerala Land Conservancy Act.
15. The Trial Court has also held that the appellant's claim for value of the trees is barred by limitation. The relevant provision of the Limitation Act is the residuary Art.113 which fixes a period of three years, from the date when the right to sue accrues. Paragraph 11 of the plaint mentions that "the cause of action for the suit arose on and after 1-7-1961 when the plaintiff was effectively dispossessed of the property by making it liable for submersion and on and after 5th February, 1970, when the High Court of Kerala disposed of plaintiff's Writ Petition O P. No. 3261 of 1967 leaving it to the plaintiff to takeappropriate proceedings in vindication of his rights..." There is no doubt that the appellant's right to compensation, if any accrued on 1-7-1961 when the submersible area of the Meenkara Dam was extended to the plaint property and the trees got submerged under water. The appellant was deprived of the right to enjoy the trees from that date. The appellant would however argue that even though a claim was made immediately after the land became submerged in water, the right to sue accrued only when his claim for compensation was finally refused. Such a refusal was on 9-7-1965 when the State dropped the proceedings to acquire the improvements. Reliance was placed on the decision in Rukhmabai v. Lexntinarayan (AIR 1960 SC 335). The Supreme Court held in that case that where there were successive threat at invasion or denial of a right, the right to sue under Art.120 of the Limitation Act (1908) could be said to have arisen only when the threat became effective and jeopardised the right. The decisionhas no application here because this is not a case where there were successive invasions of right so far as the appellant was concerned. Even according to the averments in the plaint, extracted above the appellant was "effectively dispossessed of the property" on 1-7-1961 when the State allowed water to collect in the property causing destruction of the trees. The right to sue for compensation accrued to him on that day. The refusal of the State to pay compensation subsequent to that date had nothing to do with the accrual of the right to sue and did not give him a fresh cause of action for the purpose of calculating the period of limitation. So also the dismissal of O. P. No. 3261 of 1967 did not create any fresh right in him to sue for compensation.
16. The further question is whether the appellant is entitled to exclusion of the period when O. P. No. 3261 of 1967 was pending. It is true that there are decisions which say that in appropriate cases a suitor is entitled under S.14 of the Limitation Act to exclusion of the period when he pursued unsuccessfully the remedy under Art.226 of the Constitution(See Narayana v. Commissioner H.R. & C.E -- ILR 1962 Andhra Pradesh 865). But to enable him to avail of the exclusion, the right to sue must have been subsisting when the proceedings were initiated under Art.226. In the present case even on the date when O. P. No. 3261 of 1967 was filed the right to sue for compensation for the value of the trees had become barred. Therefore, the question of exclusion of the period when that Original Petition was pending does not arise for consideration.
17. For the abovesaid reasons the finding of the court below that the suit was barred by limitation does not call for interference.
The result is that the appeal fails. It is, therefore, dismissed with Costs. :
An oral application was made on behalf of the appellant, under Art.134A of the Constitution for appeal to the Supreme Court. We are not satisfied that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court. Certificate is not granted.