The main legal point established is the inapplicability of the principle 'quicquid fixatur solo, solo cedit' in India and the necessity of specific pleadings and evidence to establish independent right over a building.

JUDGMENT :

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.

2. The appellant assails decree and judgment in the above suit, dated 20.9.2014 and decree and judgment in A.S.No.84/2014 on the files of the Sub Court, Cherthala, whereby, the trial court verdict was confirmed.

3. Heard both sides in detail. Perused the records.

4. I shall refer the parties in this appeal as 'plaintiffs' and 'defendant', for convenience.

5. At the time of admission, my learned predecessor, as per order, dated 6.2.2023, raised the following substantial questions of law:

(A) Whether court below went wrong in holding that 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?

6. Coming to the brief facts, a suit was filed by the plaintiffs, who obtained title over the plaint schedule property along with a shed and other items therein, as per sale deed executed by the defendant/appellant herein. According to the plaintiffs, at the time of execution of the sale deed, an agreement was executed, whereby, the defendant was permitted to reside in the shed for a period of six months with undertaking to vacate the same, thereafter. Since the defendant did not vacate the same, relief of declaration of title over the plaint Item No.2 property, recovery of possession of the same and prohibitory injunction, were sought for.

7. Defendant resisted the suit, contending inter alia that apart from the shed mentioned in the agreement, another building under construction also was in the plaint schedule property and 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.

8. The trial court recorded evidence. PW1 and PW2 were examined and Exts.A1 to A11 were marked on the side of the plaintiffs. DW1 and DW2 were examined and Exts.B1 to B7 were marked on the side of the defendant. Exts.C1 series and X1 were also marked. Thereafter, on appreciation of evidence, the trial court decreed the suit as under:

“In the result, the suit is partly decreed as follows:-

1) The plaintiffs are entitled to get a declaration of title over the plaint item No.2 property.

2) The plaintiffs are entitled to a decree of permanent 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.

3) The plaintiffs are entitled to recover possession of the disputed building from the defendant on payment of Rs.25,000/-.

4) Parties shall bear their own costs.”

9. Though appeal preferred, challenging the same, the same also was dismissed.

10. The learned counsel for the appellant/defendant placed a decision of the Apex Court in Patnaik and Co. v. State of Orissa, reported in [AIR 1965 SC 1655], to contend that, whatever is fixed to the soil belongs to the soil, is a principle, which is not applicable in India, as held in the above decision. Accordingly, it is argued that