Krishnan, J.
1. The first point taken in, this second appeal is that the lower Courts had no jurisdiction to try the case as the plaint land is raiyati land and, therefore, governed by the Madras Estates Land Act. I think that the decision, of the lower Courts is correct on the point, for they find that the land was tank-bed land and is still tank-bed land. The evidence is clear on the point and the finding come to by the lower Courts is a finding of fact, which I must accept in second appeal. Nothing turns upon the definition of the words 'tank-bed' in the Estates Land Act, so far as this case is concerned. That being so, the plea of no jurisdiction fails, and must be rejected.
2. The next question argued before me is as regards the compensation which the defendants claim for improvements made on the land. That, no doubt, depends on the application of Section 51 of the Transfer of Property Act. The District Munsif has found that the defendant did not act bona fide in making the improvements; but the Subordinate Judge has riot discussed the point at all. The Subordinate Judge has disposed of the matter by merely saying that be thinks that the learned District Munsif has dealt with the point correctly. I cannot accept that as a proper disposal of the question. I must, therefore, ask the Subordinate Judge to consider the matter on the evidence in the case and return a revised finding on the question whether the defendants are entitled to improvements and, if so, what the value of the improvements is. The finding will be on the evidence already on record, and will be returned in six weeks from 'this date. Objections in ten days thereafter.
3. The finding of the Subordinate Judge was as follows:
In this case I am asked to submit a revised finding on the following issue:Whether the defendants are entitled to improvements and, if so, what the value of the improvements is.
4. The evidence shows that the District Board sold certain plots of land by public auction (vide Ex. F.) The 1st defendant purchased 6 acres and 24 cents of land out of the total (area vide Ex. G.) In taking possession he seems to have entered also on the suit land which immediately adjoins on the south the land purchased by him. It is on this piece of land that cocoanut trees have been planted. It has been found that the suit land has been encroached upon by him and that it must be restored to the District Board. The question is whether he is entitled to the value of the improvements made by him in the shape of the cocoanut trees mentioned in the evidence.
5. If Section 51 governs the case the answer to the issue must be in the negative. That section deals with improvements effected on property which has been transferred to the person effecting the improvements. The language of the section is ''When the transferee of immovable property makes any improvement on the property...' (The italics are mine). This makes it clear that the first pre-requisite for the application of the section is that the improvement must be made on the very property conveyed. But in the present case, the improvement has been made not on any portion of the 6 acres and 24 cents, conveyed to the 1st defendant but on land not included in the same. The case, therefore, does not come within the purview of Section 51 and if the section were to be held to be exhaustive of cases of claims for improvements by transferees there is at once an end of the 1st defendant's claim.
6. The facts as I find them are these. The 1st defendant after purchasing the 6 acres and 24 cents of land at the public sale by the District Board went and took possession of not only the above land but also of the land in suit. I am satisfied on the evidence that he did not deal with the additional land with knowledge that he was committing a trespass, but owing to his confusion as to the correct boundaries. The plan prepared by the District Board shows how hopeless it would be for a purchaser to identify the particular extent of land conveyed to him (vide Ex. H.) That the District Board was conscious that there was likely to be confusion and mistake in the ascertainment of the boundaries of the several plots sold by public auction is apparent from one of the conditions fixed by it for sale (Ex. F, condition IV.) The karnam states that previous to the sale the land was plotted by means of pegs driven into the land (this statement is badly misprinted in the printed record), but he was not considered to be a satisfactory witness by the trial Court and I am not prepared to accept his statement. Even if pegs had been placed I do not think in a large extent of land like that sold, the pegs would have served to dispel the confusion. The karnam also says that when 1st defendant trespassed upon the suit land he made a report to the District Board. But the report is not produced and I do not believe the karnam's testimony on this point. I take it then that the 1st defendant entered on the disputed land in the belief that it was part of the property purchased by him at the auction. That the District Board did not take steps at once to disabuse him of his mistake (as it could and ought to have done) served to confirm the 1st defendant's belief in his own right, and in this belief he proceeded to plant cocoanut trees and incurred expense
7.I am further of opinion that in making the improvements it cannot be said that the 1st defendant was wanting in 'good faith.' This expression occurring in Section 51 has been the subject of judicial consideration in Narayana Aiyar v. Sankaranarayana Aiyar [1914] 1 L.W. 369. and this case shows that want of good faith cannot be attributed to the 1st defendant. If the latter knew that he was committing trespass it is scarcely likely that he would have spent a large amount in making permanent improvements knowing all the time that lie was liable to be turned out at any moment.
8. That Section 51 cannot be held to include all possible cases of the kind now under consideration appears from the fact that the Transfer of Property Act itself has not been held to be exhaustive : Amir Bi Bi v. Arokiam : (1918)34MLJ184 per Seshagiri Ayyar, J., and Subbaraya Rowther Mind a Nainar v. Kuppusami Aiyangar [1909] 34 Mad. 442 I would also refer to the standard work of Dr. Gour on the Law of Transfer in British India, Volume I.S. 687, wherein there is a discussion and classification of cases of improvements not coming under Section 51 of the Act.
9. If, therefore, the 1st defendant's claim can be considered as not coming under Section 51 but that it is governed by general rules of equity, then it appears to me that as he entered on the suit land in the bona fide belief that it formed part of the land purchased by him, and the improvements were made by him under such a belief, and the District Board did not promptly take steps to disabuse him he would be entitled to the value of his improvements. The witnesses give different figures regarding the value ranging from Rs. 200 to Rs. 1,000. Making allowances for error and exaggeration on both sides I would assess the value at Rs. 300.
10. On the question remitted my finding is that the 1st defendant is not entitled to any compensation for improvements if the case is governed by Section 51 and that if Section 51 be held not to cover this case he is entitled to recover Rs. 300 for the value of improvements on the principle enunciated in Ramsden v. Day son [1866] 1H.L. 129.
[After the return of the finding the following judgment was delivered:-]
11. In this case a finding was called for from the lower Appellate Court on the question whether the defendant was entitled to improvements on the portion of the land from which he was being ejected and, if he was entitled, what the value of those improvements was. The Subordinate Judge has returned a finding in which he seems to think that Section 51 of the Transfer of Property Act would not apply, but he says that, on general principles of equity, the defendant would be entitled to the improvements made by him. He assesses the value of those improvements at Rs. 300.
12. This is a case where the defendant purchased a large plot of land in public auction when the District Board was selling certain plots of land. In being given possession of the land that he had purchased, he seems to have been given two acres and odd of land more than what he purchased; but the Subordinate Judge finds that he was not conscious that there was any such mistake and that he took possession of the whole of the land as being the land that he purchased. He made improvements on the whole land and now the District Board, the plaintiff, finding that the defendant has in his possession more land than 6 acres 24 cents which he purchased, has brought this suit to eject him from the rest of the land.
13. The question is whether the defendant is entitled to compensation for the improvements that he has made. The Subordinate Judge finds that he made the improvements bona fide and I accept that finding in second appeal. To my mind, this is a case to which Section 51 of the Transfer of Property Act can be properly applied ; because the defendant was a transferee of the property as a whole and he believed, in good faith, that he was absolutely entitled to the whole and made the improvements bona fide on the property. When he is ejected he must, therefore, be paid compensation for the improvements. Even apart from Section 51 of the Transfer of Property Act, I think, as the Subordinate Judge states, that, on general principles of equity, his claim could be supported, more especially as the District Board, knowing that the defendant was making improvements on the land, did nothing to prevent it. I find that the defendant is entitled to the value of the improvements he has made. I accept the finding of the Subordinate Judge that their value should be assessed at Rs. 300.