Hugh Walmsley, J.
1. The appellants are the defendants, the successors-in-interest of Satyendra Nath Roy Chowdhury, who was the proprietor of a khas mahal holding. This holding was sold under the Revenue Sales Law by the Collector on December 17, 1919, and bought by the plaintiff. Satyendra's efforts to have the sale set aside were fruitless and on July 6, 1920, a certificate was issued to the plaintiff saying that his purchase took effect from May 1, 1920. Then on August 2, 1920, a declaration was made under the provisions of the Land Acquisition Act in respect of the holding and on March 11, 1921, the Deputy Collector awarded Rs. 2,181 for the land, and Rs. 12,388 for the building standing on it. This building was admittedly erected at the expense of Satyendra, and it was standing on the land at the time of plaintiff's purchase. The suit was brought to determine whether the plaintiff or defendants were to take the compensation money. There is, of course, no question about the compensation for the land: that must go to the plaintiff. The learned Judge has held that the plaintiff should also get the compensation for the building. It is against that finding that the appeal is directed.
2. It is conceded on all hands that the holding is one that can be sold under the Revenue Sales Law. Unfortunately the language of Act XI and Act VII seems hardly to refer to a small holding like the present one. Here the holding is a homestead or a residential site, and in the occupation of the proprietor. The learned Judge proceeds frankly on the doctrine omne quod solo incedificatur solo cedit, although, he admits that it has but a limited application in this country.
3. In this I think, he was wrong. The point was discussed, and settled in 1866, in the case of Thakoor Chunder Pramanick v. Ramdhone Bhuttacharjee 6 W.R. 228 and incidently it was pointed that the Civil Law gave some protection to the man who being in possession of land in good faith erected a building on it. On the authority of that decision I think it is clear that the plaintiff had the option of calling upon the defendants to remove the building or to accept such sum as might be found to be reasonable compensation. The plaintiff did not exercise that option. He says that he took delivery of possession through the Collector in August 1920, but that allegation is denied by the defendants and there is no evidence adduced in support of it. I need not consider when a purchaser must exercise his option in such a case: for my present purpose it is enough to say that the plaintiff had not exercised his option. It appears to me to follow from this failure on the part of the plaintiff that ownership of the building remained with the defendants, and that it was still with them when the award was made Consequently, I think that the learned Judge's decision is wrong, and that it must be reversed. The defendants, however, are not entitled to the whole of the compensation for the building: they allowed it to stand on the plaintiff's land for a long time and they ought to pay a reasonable sum for the use of the land. I agree with my learned brother as to the sum.
4. We are told that the whole of the compensation money was withdrawn by the plaintiff after the decision by the first Court. The plaintiff must refund the balance after deducting the amount allowed to him as indicated above.
5. The appeal will be allowed and the suit decreed in the form indicated with proportionate costs in both Courts.
6. I agree and wish to add a few words.
7. Act XI of 1859 is described in its title as an Act to improve the law relating to the sales of land for arrears of revenue in the Lower Provinces under the Bengal Presidency. In the Regulations and Enactments dealing with settlement of revenue it is the land which is assessed to revenue. Under Act XI of 1859 what is sold for arrears of revenue is the estate. The word is not defined in that Act but in Act VII of 1868. In the latter Act estate has been defined as meaning any land or share in land subject to the payment to Governments of an annual sum in respect of which the name of a proprietor is entered on the register known as the General Register of all Revenue paying estates, or in respect of which a separate account may in pursuance of Section 10 or Section 11 of the Act XI of 1859 may have been opened. These Registers are now prepared and maintained under the Land Registration Act VII of 1876, Section 2 Of which gives a definition of estate' as including land, and it is the lands which are so entered as assessed or unassessed prima facie, therefore, and in the absence of anything else, I should think that it is the land or the share in the land, as stated above, which passes at the sale, and not the structures or buildings on the land.
8. To make out that the structures and buildings pass with the land or the share therein, several arguments have been put forward and I propose to consider them in their order.
9. Reference is made to the definition of 'land' as given in Section 3, Sub-section (a) of the Land Acquisition Act (I of 1894) and the definition of 'immoveable property' as given in Section 3 of the Transfer of Property Act (IV of 1882). Both these definitions, however are expressly restricted to the enactments in which they appear and cannot be imported into Act XI of 1859, with which the provisions of Act VII of 1868 have to be read by reason of Section 30 of the latter.
10. It is urged that though the provisions of Section 8 of the Transfer of Property Act do not apply to a sale by operation of law the principles underlying those provisions will apply to a purchase made at a revenue sale. It is urged that at such a sale an unqualified transfer takes place which conveys all the interest which the defaulting proprietor possessed and the rule of interpretation that every grant is to be most strongly taken against the grantor is to be applied. It is contended that where there is no reservation the structures and buildings will pass by necessary implication. This argument is based upon a supposed analogy between a transaction as between a vendor and a vendee and a revenue sale. The rights of a purchaser at a revenue sale are entirely and radically different from those of a purchaser at a voluntary sale. The Judicial Committee in the case Surja Kanta Acharjya Bahadur v. Sarat Chandra Roy 25 Ind. Cas. 309 : 18 C.W.N. 1281 : 16 M.L.T. 290 : 27 M.L.J. 365 : 1 L.W. 807 : (1914) M.W.N. 757 : 16 Bom. L.R. 925 : 20 C.L.J. 563 (P.C.) dealing with the case of a sale held under Act XI of 1859 enunciated the proposition that on the failure of an owner to pay the Government assessment his estate or interest in the land is forfeited or rather determined, and that under such a sale what is sold is not the interest of the defaulter owner, but the interest of the Crown, subject to the payment of the Government assessment. In a sale held under that Act the estate is sold in the condition in which it stood at the time of the settlement; the purchaser does not derive his title from the defaulting proprietor but takes the estate from the Crown in the state in which it was at its inception at the time of the settlement.
11. The decision of the learned Subordinate Judge is hot, and, in my opinion, rightly not, sought to be supported by a reference to the expression 'free from encumbrance' appearing in Section 37 of Act XI of 1859. Structures or buildings are not encumbrances within the meaning of the section and the said expression is irrelevant for our present purposes.
12. It is conceded that the law of fixtures has but a limited application to this country and that the provisions of Section 108, Clause (h) of the Transfer of Property Act have no application.
13. The precise effect of a revenue sale on the building erected by the ex-proprietor was incidentally considered by this Court in the case of Shib Doss Banerjee v. Bamun Doss Maokerjee 15 W.R. 360 : 8 B.L.R. 237 wherein at page 361 Norman, C.J., observed as follows: "If the land had been sold for arrears of Government revenue the owner of a house built on the land might have been entitled as against the auction-purchaser to reside in or enjoy the house paying an equitable ground-rent for the site to such purchaser and that whether the house were built by a person holding under a lease granted by the former proprietor--Act I of 1845, Sections 3, 26 and 27 and Act XI of 1859, Sections 3, 7 or even by the ex-proprietor himself, see Ram Koomar Sen v. Mohesh Chunder Sen (1860) 1 Sudder Dec. 637.".... This proposition of law enunciated so far back as 1871 has not been dissented from at any time till now, and I am not convinced that there is any reason to hold that it is otherwise than a correct one. It has been argued that the case of Ram Kumar Sen v. Mohesh Chunder Sen (1860) 1 Sudder Dec. 637 presents certain distinguishable features. I think it does; but the principle is there and that is entirely, in consonance with the general rule which must govern the rights and liabilities of the purchaser on the one hand and the ex-proprietor on the other. That general rule was laid down by a Full Bench of this Court in the case of Thakoor Chunder Pramanik v. Ramdhone Bhuttacharjee 6 W.R. 228: "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 either to remove the materials, restoring the land to 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 to 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".
14. Applying this general rule in the present case there is no escape from the conclusion that the ownership of the structures or buildings, which were admittedly erected by the appellants' predecessor, the defaulting proprietor, did not pass to the respondent, the purchaser.
15. From this, however, it does not follow that the appellants are entitled to the whole of the compensation awarded by the Land Acquisition Collector for the structures and buildings. We must take into consideration all the facts and circumstances of the case and we are competent to pass such orders as the equities of the case demand. The learned Advocate for the appellants with his usual candour has conceded that we may allow reasonable compensation to the respondent for the appellants' laches in not removing the materials of the structures and buildings before 1st of May 1919 which was the date mentioned in the certificate from which the sale was to take effect and the fact that the latter did not exercise the option of calling upon the ex-proprietor to remove them suggests that he allowed them to stand subject to payment of reasonable ground rent. The structures and buildings remained on the land till the 11th March 1921, on which date the Collector took possession of the premises. In the absence of any arrangement which it was clearly the duty of the ex-proprietor to make with the purchaser for allowing the buildings and structures to remain on his land, I think we may reasonably assess the compensation at the rate of Rs. 100 per month.
16. The result is that out of the compensation awarded for the structures and buildings, the appellants should be held entitled to the whole amount less a sum of Rs. 2,300 due to the respondent, as compensation for 23 months during which period the structures and buildings stood on the land. There is no controversy as to the rest of the compensation money, that is to say, that awarded for the land or the trees.
17. The decree of the Court below is set aside and in lieu thereof a decree will be drawn up declaring the plaintiff's title to the whole of the compensation awarded for the lands and trees and also to the sum of Rs. 2,300 stated above, out of the amount awarded in Land Acquisition Case No. D, 37-95-96 of 1920-21 of the Land Acquisition Deputy Collector's Court at Alipur, and the rest will go to the defendants.
18. Having regard to the circumstances of the case, and the proportion of success and defeat of the respective parties I think the proper order to make is to allow proportionate costs in this Court as well as in the Court below.