Second appeal by defendant challenging concurrent decrees declaring plaintiffs' title over a partly completed building and directing recovery of possession. The court held the maxim quicquid fixatur solo solo cedit does not apply in India; independent title or irrevocable license required specific pleadings and proof, which were absent. Appeal dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 15TH DAY OF JANUARY 2024 / 25TH POUSHA, 1945
RSA NO. 482 OF 2021
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.84/2014 OF SUB COURT,
CHERTHALA
AGAINST THE JUDGMENT AND DECREE IN O.S.NO.352/2011 OF ADDITIONAL
MUNSIFF COURT,CHERTHALA
APPELLANT/APPELLANT/DEFENDANT:
OMANA,
AGED 66 YEARS
D/O KAMALAKSHI AMMA, NAMBIATHUSSERIL HOUSE, WARD NO.VIII,
NORTH OF MUHAMMA GOVERNMENT HOSPITAL, MUHAMMA P.O.,
ALAPPUZHA DISTRICT, PIN - 688525.
BY ADV K.JAYASANKAR (KAPRASSERY)
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1LEELA,
D/O MANKA, AGED 64 YEARS,VALAVATHIL, PERUMTHURUTHU
MURI,THANNEERMUKKAM SOUTH VILLAGE, ALAPPUZHA DISTRICT,
PIN 688525.
2PRABHAKARAN
S/O VAVA,AGED 78 YEARS,KOCHUPARAMBIL,CHARAMANGALAM
MURI,THANNEERMUKKAM SOUTH VILLAGE,ALAPPUZHA DISTRICT, PIN
688525.
R1 BY ADVS.
DR V N SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
C.PURUSHOTHAMAN NAIR
VIJAYAN PILLAI P.K.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. NO.482 OF 2021 2
CR
JUDGMENT
Dated this the 15th day of January, 2024
Defendant in O.S.No.352/2011 on the files of the Additional Munsiff Court, Cherthala, is the appellant and he has filed this Regular Second Appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, through Legal Aid Counsel. Respondents are the plaintiffs in the suit.
on the files of the Sub Court, Cherthala, whereby, the trial court verdict was confirmed.
(A) Whether court below went wrong in holding that
R.S.A. NO.482 OF 2021 3
whatever is fixed to soil or goes with soil belongs to the soil which is held to be not applicable in India as per
Patnaik v. State of Orissa AIR 1965 SC 1655?
(B) Whether the decree of recovery of possession granted is legal when Ext.A2 sale deed is silent about transfer of building under construction?
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the defendant executed Ext.A2 sale deed for completion of the said construction. The further case of the defendant was that the plaintiffs agreed to clear the liability of the defendant under the ‘Abhaya' scheme provided by Muhamma Grama Panchayath and loan from CARD Bank. She also raised a contention that the building mentioned in the compromise is not the building under construction and the same was a temporary shed referred in the sale deed. That apart, defendant raised a contention that, she had independent right over the incomplete building, having asbestos roof and also she got irrevocable license in respect of the partly completed building in the plaint schedule property.
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prohibitory injunction by restraining the defendant from causing any obstructions and peaceful possession and enjoyment of the plaint from item No.2 property by the plaintiff and from committing any waste therein.
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referring two earlier decisions in Thakoor Chunder Poramanick
v. Ram Dhonde Bhuttacharji reported in [6 Suth Weekly Reports 228] and Narayan Das Khettry v. Jatindra Nath Roy Chowdhury reported in [LR 54 IA 218], the Apex Court held the rules in the maxim quicquid fixatur solo, solo cedit , is not applicable in India and it was held further that, in cases involving such contentions, the court must ascertain what was the intention of the parties when the property in goods belonging to one person and affixed to the property of another person got involved with reference to the facts of each case.
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Commissioner. It is relevant to note that the defendant executed Ext.A3 document, keeping right of enjoyment over the shed, for a period of six months, with undertaking to vacate the same, thereafter. But, the contention raised by the defendant is that, the partly completed building is not one covered by sale deed and therefore, defendant has independent right over the same and the plaintiffs have no right over the same. While addressing this contention, the learned Munsiff disbelieved the evidence of DW1 negating execution of Ext.A1 agreement for sale in relation to the plaint schedule property and found that in continuation of Ext.A1, Ext.A2 sale deed was executed. It was found by the learned Munsiff that the execution of Ext.A2 and Ext.A3 were not in dispute. According to the plaintiffs, they paid consideration for the entire property including the temporary shed, electric connection and the partly completed building, having asbestos roof. The contention of the defendant is that, the property was sold out for the purpose of completing the construction work of the part completed building. Further, the defendant raised a contention that, at the time of execution of Ext.A2 sale deed, plaintiffs agreed to clear the loan liability she availed under the
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‘Abhaya’ scheme from CARD Bank and Ext.B6 series documents
produced to show that the liability has been subsisting. But, during cross examination of the defendant as DW1, she admitted that the entire debt to the CARD Bank was paid off by the plaintiffs and the said liability fully discharged.
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recitals in Ext.A1 would go to show that the defendant transferred the entire property after allowing occupation of the shed therein by the defendant for six months, on receiving consideration for the same, as per Ext.A2. It has come out in evidence that, as per the assurance given by the plaintiffs, as contented by the defendant, plaintiffs had discharged the liability towards CARD Bank. Even though the principle 'whatever is fixed to the soil belongs to the soil' is not applicable in India, when a party claims independent right over a building or a structure in a property which was sold for valid consideration to another person, the said plea should be specifically raised and proved. In this case, the learned Munsiff found that the partly completed building also is subject matter of sale, as per Ext.A2 sale deed and therefore, the plaintiffs would get title over the same. The appellate court also upheld the said contention.
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acting upon the license, has executed a work of a permanent character and incurred expenses in the execution’ ; then, the
license is irrevocable. So, as per Section 60(b), license is irrevocable when the licensee acting upon the license, executes work of a permanent character and incurred expenses in the execution. Therefore, in order to establish an irrevocable license, there must be specific pleadings regarding grant of license, execution of a work of permanent character and there must be evidence to show that the licensee executed a work of permanent nature in the licensed premises, acting on the license and incurred expenses thereof. In fact, none of the ingredients to establish irrevocable license, as defined under Section 60(b) of the Indian Easements Act, 1882, either specifically pleaded or proved. Going by the facts of this case, this contention appears to be contrary to the contention raised, claiming absolute title over plaint Item No.2.
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All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.
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Registry shall inform this matter to the trial court as well as
the appellate court, forthwith.
Sd/-
A. BADHARUDEEN JUDGE
Bb
2 issues framed by the court
Whether the courts below erred in holding that whatever is fixed to the soil belongs to the soil, contrary to Patnaik v. State of Orissa.
Whether the decree of recovery of possession was legal when Ext.A2 sale deed was silent about transfer of the building under construction.
Colour shows how this judgement treated each authority
Patnaik and Co. v. State of OrissaApplied¶11
AIR 1965 SC 1655 · Who else cites this
3 provisions across 3 enactments
Omana
Leela
Prabhakaran
A. Badharudeen
As recorded by the court registry
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A. Badharudeen
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