Madras High Court
A.Subramanian vs Neelam Jaiswal on 16 August, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.(MD)No.43 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2024
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.43 of 2017
A.Subramanian ... Appellant / Appellant / Plaintiff
Vs.
1.Neelam Jaiswal
2.Manu Jaiswal ... Respondents / Respondents / Defendants
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and decree dated 13.12.2012 in A.S.No.48 of 2011 on the
file of the Court of the Subordinate Judge, Ambasamudram confirming the
Judgement and Decree dated 06.04.2011 in O.S.No.173 of 2005 on the file of
the Principal District Munsif, Ambasamudram.
For Appellant : Mr.V.George Raja
For Respondents : no appearance
JUDGEMENT
Heard the learned counsel for the appellant. The respondents have been
served. Though they have entered appearance through counsel, there is no
representation on their behalf.
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2. The appellant filed O.S.No.173 of 2005 on the file of the Principal
District Munsif Court, Ambasamudram seeking the relief of permanent
injunction. The case of the plaintiff is that the registered sale deed dated
16.09.2004 executed by him in favour of the defendants pertained to land alone
and did not cover the standing trees. The plaintiff wanted the Court to restrain
the defendants from interfering with his right to cut and remove the standing
trees.
3. The defendants filed written statement controverting the plaint
averments. According to them, the plaintiff sold the suit land with all the
incidental rights and interests. Based on the divergent pleadings, the learned
trial Court framed the necessary issues.
4. The plaintiff examined himself as P.W.1 and two other witnesses on
his side. Ex.A1 to Ex.A13 were marked. The husband of the first defendant
examined himself as D.W.1. One Arumugam was examined as D.W.2. Ex.B1
to Ex.B3 were marked. An advocate commissioner was appointed. His interim
and final reports were marked as Court Exs.1 & 2. Valuation reports received
from a private individual and the forest department were marked as Court Exs.3
& 4. After considering the evidence on record, the trial Court dismissed the
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suit on 06.04.2011. Questioning the same, the plaintiff filed A.S.No.48 of 2011
before the Sub Court, Ambasamudram. The first appellate Court dismissed the
appeal on 13.12.2012. Challenging the same, this second appeal came to be
filed.
5. Though the notice was ordered to the respondents, the second appeal
has not been admitted. The learned counsel for the appellant reiterated all the
contentions set out in the memorandum of grounds of appeal and called upon
this Court to admit the second appeal, frame substantial questions of law, issue
notice to the respondents again and thereafter take up the appeal for disposal.
6. I am not swayed by the submissions of the learned counsel for the
appellant. Admittedly, the plaintiff had sold the suit land vide registered sale
deed dated 16.09.2004. It is true that there were standing trees. The plaintiff
would claim that the standing trees were not sold. It is a fact that the standing
trees were not specifically excluded from the conveyance. The question that
calls for consideration is whether in such circumstances, it should be taken that
the plaintiff had sold the standing trees also along with the land.
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7.The issue raised in this appeal is no longer res integra. The Hon'ble
Supreme Court in the decision reported in (2001) 10 SCC 221 (Suresh Chand
Vs Kundan) held as follows:
“3......
Section 3 of the Act defines the expressions “immovable property” and
“attached to the earth”. They read as under:
“3. ***
‘immovable property’ does not include standing timber, growing crops or
grass;
‘attached to the earth’ means—
(a) rooted in the earth, as in the case of trees and shrubs;
(b) embedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so embedded for the permanent beneficial enjoyment of
that to which it is attached;”
4. Section 8 of the Transfer of Property Act provides that:
“8. Unless a different intention is expressed or necessarily implied, a transfer
of property passes forthwith to the transferee all the interest which the
transferor is then capable of passing in the property and in the legal incidents
thereof.
Such incidents include, where the property is land, the easements annexed
thereto, the rents and profits thereof accruing after the transfer….”
5. Section 3(26) of the General Clauses Act defines “immovable property” as
under:
“3. (26) ‘immovable property’ shall include land, benefits to arise out of land,
and things attached to the earth, or permanently fastened to anything attached
to the earth;”
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6. A perusal of Section 3(a) of the Act shows that all things attached with the
earth are included in the land. Thus the standing trees being embedded in the
earth are part of the land. Section 8 of the Act provides that if there is any
transfer of a property and unless there is any expressed or implied different
intention appearing in the agreement, the interest in the property would also
include anything attached with the land which is agreed to be sold. Thus when
a vendor sells a property, he sells all his rights embedded in the property
unless it is specifically or impliedly excluded. This Court in Shantabai v. State
of Bombay [AIR 1958 SC 532 : 1959 SCR 265] held that although the
Transfer of Property Act does not define immovable property excepting saying
that immovable property does not include standing timber, growing crops or
grass but Section 3(26) of the General Clauses Act defines “immovable
property”. According to the said provision immovable property shall include
land, benefits arising out of land and things attached to the earth, or
permanently fastened to anything attached to the earth. As there is no special
definition of immovable property, the general definition contained in the
General Clauses Act would prevail and, therefore, trees are regarded as part of
land because they are attached and rooted in the earth. In view of the said legal
position, the trees, which at the time of agreement for sale were mere saplings
on the land would vest in the transferee.
7. This matter can be examined from another angle. As noticed earlier that
when the agreement for sale was entered into between the appellant and the
defendant, no full-fledged trees were in existence on the land and there were
only plants and saplings which, during the long period of litigation of 25 years
have grown into full-grown trees. The question, therefore, arises whether the
land, which was agreed to be transferred, would also include subsequent full-
grown trees on the land. In Divisional Forest Officer, H.P. v. Daut [AIR 1968
SC 612 : (1968) 2 SCR 112] this Court held as under: (SCR p. 115 D-E)
“There can be no doubt that trees are capable of being transferred apart from
land, and if a person transfers trees or gives a right to a person to cut trees and
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remove them it cannot be said that he has transferred land. But we are
concerned with a different question and the question is whether under Section
11 of the Act trees are included within the expression ‘right, title and interest
of the landowner in the land of the tenancy’. It seems to us that this expression
‘right, title and interest of the landowner in the land’ is wide enough to include
trees standing on the land. It is clear that under Section 8 of the Transfer of
Property Act, unless a different intention is expressed or implied, transfer of
land would include trees standing on it. It seems to us that we should construe
Section 11 in the same manner.”
8. The aforesaid decision makes it clear that interest in the property also
includes anything attached to the land including trees standing on the land.
Where a vendor sells his right, title and interest in the land unless expressly or
impliedly provided in the agreement, sale of the land would also include trees
standing thereon. But where trees are sold for being cut and removed it does
not mean that the land is also transferred along with the trees. It is open to the
vendor while transferring the land to exclude the trees from sale if he wants to
appropriate it by cutting and removing them. In the present case, there was no
mention in the agreement that the saplings were not being sold along with the
land. In the absence of any expressed or implied intention in the agreement, it
would be taken that the land along with the saplings standing on the land,
which subsequently had grown into trees, were sold. The view taken by the
High Court that unless the trees are sold separately, trees would not go with
the land, is erroneous.”
8.The sale deed executed by the plaintiff does not state that the trees
were not being sold along with the land. Applying the aforesaid decision, I
conclude that the plaintiff had conveyed and transferred the suit trees also
along with the land when he executed the sale deed dated 16.09.2004 in favour
of the defendants.
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9.The learned counsel appearing for the appellant submitted in passing
that the plaintiff was coerced into executing the said sale deed. This is an
unjust insinuation. The plaintiff did not ask for cancellation of the sale deed.
He did not disown the sale of the land. His only contention was that the trees
were not parted with along with the land. This contention has already been
found to be unsustainable. I therefore reject the allegation that the sale was
vitiated by coercion.
10.The Courts below have given yet another solid reason for non-suiting
the plaintiff. In the face of the specific stand taken in the written statement that
the trees were also sold, the plaintiff was obliged to have sought the relief of
declaration. He did not do so. In fact the first issue framed by the trial Court
was whether the suit land alone was sold without the standing trees in favour of
the defendants. The second issue that was framed by the trial Court was
whether the suit was bad because the relief of declaration was not sought. The
plaintiff asserted his title over the trees. The defendants' stand was that title
over the trees also had passed on to them. Thus, there was a clear cloud cast on
the plaintiff's claim over the trees. It was held in Anathula Sudhakar v.
Buchi Reddy (2008) 4 SCC 594 that in such circumstances, the plaintiff must
ask for the relief of declaration also and a suit for injunction simpliciter will
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not lie. The Courts below have concurrently found against the plaintiff on this
issue.
11.I am satisfied that the Courts below approached the issues from a
proper perspective. No substantial question of law arises for consideration.
The second appeal is dismissed. No costs.
12.The judgment was dictated in open court in the presence of the
counsel for the appellant. While correcting the typed copy, I noted that the
husband of the first defendant and father of the second defendant is Shri Anoop
Jaiswal, I.P.S (Retd.,). He had served as Superintendent of Police in
Thoothukudi District. His experiences have been captured by the well known
journalist and author V.Sudarshan in “Tuticorin Files”. The Tamil translation
(Kutramum Karunaiyum) published by Kalachuvadu was released by me in
September 2022. Should I recall my order ? Would I have recused myself had I
noticed this earlier?. This question crossed my mind.
13.Question arose before the Supreme Court of Florida, USA, if
Facebook friendship between a judge and an attorney appearing before him in a
matter is a sufficient ground for disqualifying him from considering that matter
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on the ground of likelihood of bias. By 4:3 majority, it was ruled that this
alone cannot be a ground for disqualification. The majority opinion expressed
by Chief Justice Charles Candy is as follows :
“In some circumstances, the relationship between a judge and
a litigant, lawyer, or other person involved in a case will be a basis
for disqualification of the judge. Particular friendship relationships
may present such circumstances requiring disqualification. But our
case law clearly establishes that not every relationship characterized
as a friendship provides a basis for disqualification. And there is no
reason that Facebook “friendships”—which regularly involve
strangers—should be singled out and subjected to a per se rule of
disqualification.”
I need not travel to Florida to assure myself that the rule of disqualification on
the ground of bias is not attracted in this case. I can look for inspiration from
the life of Adi Shankaracharya. In the debate between Adi Shankara and
Mandana Mishra, the umpire was none other than Ubhaya Bharati, wife of
Mandana Mishra (Refer Pavan K.Varma's book, Page 28). M.Rama Jois in his
book “Legal and Constitutional History of India Volume – I) quotes
Dharmakosa which lays down the qualification of judges as follows :
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“Let the king appoint, as members of the Court of Justice,
honourable men of tried integrity (Sabhyas) who are able to bear
the burden of administration of justice and who are well versed in
the sacred laws, rules of prudence, who are noble and impartial
toward friends or foes.”
From the above sloka, it can be inferred that a judge is supposed to be neutral
irrespective of whether the person seeking justice is friend or enemy.
14.My conscience assures me that I had dealt with the matter neutrally.
That I released the book “Kutramum Karunaiyum” in September 2022 was not
even present at the back of my mind. Even if I had recollected the same, it
would have made no difference to the eventual outcome. Experience in the
legal profession enables a judge to separate the personal from the judicial
aspects of life by erecting a firewall between the two. The counsel for the
appellant did not ask for my recusal. I am answerable to my conscience ; I
have, therefore, put everything on record.
16.08.2024
Index : Yes / No
Internet : Yes/ No
NCC : Yes / No
SKM
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To:
1.The Subordinate Judge, Ambasamudram.
2.The Principal District Munsif, Ambasamudram.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
SKM
16.08.2024
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