- (1.) This appeal is by special leave against the judgment and decree of the High Court of Kerala which dismissed an appeal against the judgment and decree of the Subordinate Court of Mavalikarat The appellant had filed a nut on October 24, 1942, for the recovery of Rs. 2 lakhs and interest thereon from the date of the suit and for costs originally against the State of Travancore now the State of Kerala-the respondent-and three others who however were not made parties in apt peal before the High Court. It was alleged in the plaint that the plaintiff (appellant) was wrongfully dispossessed from 160 acres of land along with the improvements which had been effected by him and as the State had appropriated those improvements without any right or title thereto he claimed the value of those improvements. was the appellant's case that he had been in occupation of the said 160 acres of Cherikkal land (unregistered dry lands in hilly tracts) about which and the adjoining lands there was a dispute as to whether the same belonged to a jenmi family known as Koodalvalli Illom-hereinafter called 'the Illom-or to the Government of the erstwhile Travancore State. The appelIant's father and the appellant had occupied these lands, made improvements thereon by planting coconut trees, arecanut palms, peppervines,' rubber-trees, jack trees other trees, and by constructing bungalow, huts, wells etc. in the bona fide belief that the lands belonged to the Illom. It was stated that according to the practice prevailing in the erstwhile State of Travancore the cultivators could enter into unoccupied waste lands belonging to the ierumes with the object of cultivating and improving them, and as they held the lands under than by paying rent, the consent of the jenmies to such occupation was implied. This practice, it seems, was also current m respect of lands belonging to the Government before the Travancore Lana Conservancy Act 4 of 1051 (24-7-1916) thereinafter called 'the Act'). It is the case of the appellant that even after the Act was passed, unauthorised occupants of land belonging to the Government who had made improvements therein had, under the rules made both under the Act and the Land Assignment Act a preferential claim over others for getting kuthakapattom or assignment of the property in their possession.
(2.) It may be mentioned that in respect of the 160 acres of land of the Illom, which were occupied by the appellant's father and the appellant, there was a dispute between the Illom and the Travancore State from about 1848. While this dispute was pending it appears the appellant applied to the Conservator of Forests for registration of the lands in his name, but the application was rejected on June 14, 1919 stating that the land applied for cannot be registered (Ext. A). While the application for registration was pending, the dispute between the Illom and the State of Travancore had reached a stage when the Illom had to institute a suit O. S. No. 126 of 1096 (January 1918) in the District Court at Quilan for a declaration of its title to those properties. In that suit the appellant, after his application for registration was rejected, sought to get himself impleaded, but that application also was rejected. Thereafter the suit filed by the Illom was dismissed on 28-6-1109 (February 10, 1934). An appeal against it was dismissed on September 27, 1943. It may here be mentioned that while the suit of the Illom i.e. O. S. No. 126 of 1096 M. E. was pending in the District Court, Quilon, the Government of Travancore had lnitiated proceedings in ejectment against the appellant by L. C. Case No. 112 of 110(! (1925 A.D.). As the suit of the Illom had been finally disposed of and the title of the Illom to the lands was not established, the appellant apprehending that he might be ejected in the above L C. Case filed a suit No. O. S. 156 of 1103 M. E. (1927-28. A. D.) in the District Court at Quilon against the respondent to establish his right and title to the said 160 acres and in the adjoining Cherikkal lands in his possession. In that suit an injunction was prayed for in respect of 100 acres of the property Involved in the suit, but the prayer was rejected. Against that order a Civil Misc. Appeal No. 206 of 1110 M.E. (1934-35 A. D.) was filed in the High Court of Travancore. The High Court issued a commission for inspecting the properties and the Commissioner in his report pare 13 of Ext. CC set out the improvements mace by the appellant on the lands which comprised of a bungalow in which the appellant was residing, a number of small houses, a rubber estate, and a large number of other valuable trees like jack trees, mango trees' coconut trees etc. It appears that as there was no injunction restraining his dispossession in L. C. Case No. 112 of 1100 M. E. an order was passed for dispossessing the appellant on July 24, 1939 Ext. VI. The appellant, pursuant to this order, was dispossessed from the lands and possession of these lands was given to the second defendant Nair Service Society Ltd. in August 1939. Thereafter the suit out of which this appeal arises was filed against the Government on October 24, 1942.
(3.) The respondent-State contended that the appellant encroached on the suit lands, that proceedings were taken against him in L. C. Case No. 112 of 1100 M.E. and he was evicted in due course, that the trespass by the appellant was of recent origin, that the allegation that the entry was made in the belief that the land belonged to the Illom was false, that the Revenue and Forest Departments did not harass the appellant but they took steps for dispossessing him only in accordance with the law, that the Commissioner's report was not correct in that all the improvements noted by the Commissioner were not made by the appellant but by other independent squatters, that after due notice an order of forfeiture had been passed in L. C. Case No. 112 of 1100 M.E. and the appellant was therefore not entitled to claim any value for improvements as it was his duty to remove any building before he was evicted. The respondent also averred that it had not taken possession of any crops or movables as stated in the plaint and that the movables found in the building were attached for the realisation of arrears of fine etc. There were other allegations also but it is unnecessary for the purposes of this appeal to refer to them.;