Amina, Sidhique and Abbas v. Madhavi @ Thankamani Amma and Ramadas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** ## **OP(C).No. 2480 of 2013 (O)** ## **--------------------------------------** **PETITIONERS:** **---------------------** ## **1. AMINA,** - **D/O.ALIKKAL SAIDALI, KOONATHARA AMSOM, PANAYUR DESOM, KOONTHARA POST, OTTAPALAM TALUK.** ## **2. SIDHIQUE,** - **H/O.AMINA, KOONATHARA AMSOM, PANAYUR DESOM, KOONATHARA POST, OTTAPALAM TALUK.** ## **3. ABBAS,S/O.AMINA AND SIDHIQUE,** - **ALIKKAL HOUSE, KOONATHARA AMSOM, PANAYUR DESOM, KOONATHARA POST, OTTAPALAM TALUK.** **BY ADVS.SRI.R.SREEHARI, SRI.P.B.KRISHNAN.** **RESPONDENTS:** **------------------------** **1. MADHAVI @ THANKAMANI AMMA, D/O.MANIPRACHIRAKAL KUNHILEKSHMI AMMA, KOONATHARA AMSOM, PANAYUR DESOM, KOONATHARA POST, OTTAPPALAM TALUK, PIN- 679 523.** ## **2. RAMADAS,** **S/O.MADHAVI @THANKAMANI AMMA, MANIPRACHIRAKAL, KOONATHARA AMSOM, PANAYUR DESOM, KOONATHARA POST, OTTAPALAM TALUK, PIN: 679 523.** **BY SRI. T.KRISHNAN UNNI, SENIOR ADVOCATE, ADV. SRI. S.A. SAJU.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **O.P.(C).NO.2480/2013-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1: PHOTO COPY OF JUDGMENT IN OS NO. 28/1992 OF MUNSIFF'S COURT,OTTAPALAM DT,25-06-1999.** - **EXHIBIT P2: PHOTO COPY OF JUDGMENT IN AS NO 75/1999 OF SUB COURT,OTTAPALAM DATED 25-06-2009.** - **EXHIBIT P3: PHOTO COPY OF JUDGMENT IN RSA 1317/2009 OF THIS HON'BLE COURT DATED 04-06-2012.** - **EXHIBIT P4: PHOTO COPY OF EP 38/2010 IN OS NO 28/1992 FILED BEFORE THE MUNSIFF'S COURT, OTTAPALAM.** - **EXHIBIT P5: PHOTO COPY OF OBJECTION FILED BY THE RESPONDENTS IN EP 38/2010 IN OS.NO 28/1992 OF MUNSIFF'S COURT, OTTAPALAM.** - **EXHIBIT P6: PHOTO COPY OF AFFIDAVIT FILED IN SUPPORT OF EA 472/2012 IN EP 38/2010 IN OS .28/1992 BEFORE THE MUNSIFF'S COURT, OTTAPALAM.** - **EXHIBIT P7: PHOTO COPY OF OBJECTION FILED IN EA 472/2012 IN EP 38/2010 IN OS 28/1992 BEFORE THE MUNSIFF'S COURT, OTTAPALAM.** - **EXHIBIT P8: AFFIDAVIT FILED IN SUPPORT OF EA NO 159/2013 IN EP 38/2010 IN OS 28/1992 BEFORE THE MUNSIFF'S COURT, OTTAPALAM.** - **EXHIBIT P9: PHOTO COPY OF THE ORDER PASSED IN EA 472/2012 IN EP 38/2010 IN OS 28/1992 BY THE MUNSIFF'S COURT,OTTAPALAM DT 04-07-2013.** - **EXHIBIT P10: PHOTO COPY OF THE ORDER PASSED IN EA NOS. 158/2013 & 159/2013 IN EP 38/2010 IN OS 28/1992 OF MUNSIFF COURT,OTTAPALAM , DATED 4-7-2013.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN, J.** **----------------------------O.P.(C).No.2480 of 2013 -----------------------------Dated this the 19[th] day of July, 2013** ## **JUDGMENT** The petitioners are the defendants in O.S.No.28 of 1992 on the file of the Court of the Munsiff of Ottappalam. The respondents are the plaintiffs therein. The suit instituted by the respondents/ plaintiffs for recovery of possession of a parcel of land on the strength of title together with mense profits was decreed by the trial court by Ext.P1 judgment delivered on 25.6.1999. In the trial court, the defendants raised a plea that the plaint schedule property which is described as a parcel of land, 78 cents in extent, situate in survey No.52/3 of Koonathara Village, Ottappalam Taluk, Palakkad District is part of the property purchased by them as per Ext.A4 sale deed dated 14.11.1980. They also raised a plea that the right of the plaintiffs, if any, has been lost by adverse possession and limitation. The trial court over ruled the contentions raised by the defendants and decreed the suit, allowing the plaintiffs to recover the plaint schedule property on the strength of title, together with mesne profits at the rate of .300/- per annum, from the date of suit till₹ recovery of possession or for a period of three years from the date of decree, whichever is earlier. 2. Aggrieved by the decree and judgment passed by the trial O.P.(C).No.2480 of 2013 ..2.. court, the defendants filed A.S.No.75 of 1999 on the file of the Court of the Subordinate Judge of Ottapalam. By Ext.P2 judgment delivered on 25.6.2009, the appellate court concurred with the trial court and dismissed the appeal. The defendants thereupon filed R.S.A.No.1317 of 2009 in this Court. By Ext.P3 judgment delivered on 4.6.2012, this Court dismissed the second appeal. 3. The petitioners had in the meanwhile filed E.P.No.38 of 2010 to execute the decree for recovery of possession. Upon receipt of notice of the execution petition, the defendants filed Ext.P5 objections wherein they contended that they should be permitted to cut and remove the trees standing in the plaint schedule property other than coconut palms of tender age. They also filed E.A.No.472 of 2012 for such permission. In the affidavit filed in support of E.A.No.472 of 2012, a copy of which is on record as Ext.P6, the petitioners contended that they have planted different species of trees including coconut palms, that the trees are aged 25 years and they are entitled to the value of improvements. They also contended that the plaintiffs/decree holders have no right over the standing trees. After E.A.No.472 of 2012 has heard on 26.6.2013, the petitioners filed E.A.No.158 of 2013 to re-open E.A.No.472 of 2012 accompanied by E.A.No.159 of 2013 paying for the appointment of an Advocate Commissioner to inspect the decree schedule property and to submit a report regarding the improvements therein. By O.P.(C).No.2480 of 2013 ..3.. Ext.P9 order passed on 4.7.2013, the execution court dismissed E.A.No.472 of 2012. By Ext.P10 order passed on the very same day E.A.Nos.158 & 159 of 2013 were also dismissed. Hence this original petition under Article 227 of the Constitution of India. 4. The principal contention raised in the instant original petition is that as the plaint schedule property is described as barren land and it now bears standing trees, the petitioners who had effected the improvements are entitled to the value of improvements effected by them in the plaint schedule property. The petitioners rely on the decision of a Full Bench of this Court in **Augusty Devassia** v. **Haridasan Nair** [1998 (2) KLT (6)] in support of their contention that they are tenants as defined under section 2(d) of the Kerala Compensation for Tenants Improvements Act, 1958, that they had come into possession of the land belonging to another and had made improvements therein bonafide believing that they are entitled to make such improvements. Various other related contentions are also raised in the original petition. 5. I heard Sri.P.B.Krishnan, learned counsel appearing on behalf of the petitioners and Sri.T.Krishnanunni, learned Senior Advocate appearing on notice on behalf of the respondents. I have also gone through the pleadings and the materials on record. One of the grounds on which the execution court declined to entertain the request made by the judgment debtors is that under the decree O.P.(C).No.2480 of 2013 ..4.. which is sought to be executed, the petitioners/judgment debtors are not entitled to the value of improvements. A reading of Ext.P1 judgment passed by the trial court discloses that apart from alleging that the defendants had effected improvements in the plaint schedule property, they had not claimed the value thereof. A reading of the judgment of the trial court would also show that the parties did not join issue as regards the question whether the defendants have effected improvements in the plaint schedule property and are entitled to the value of improvements in the event of the suit being decreed. Nor was such a plea raised and found in favour of the defendants. The issue was also not raised before the first appellate court or this Court. It is thus evident from the decree and judgment of the trial court that the judgment debtors are not entitled to the value of improvements. It is trite law that the execution court cannot go behind the decree. In the absence of a finding by the trial court or by the first appellate court or by this Court to the effect that the defendants have effected improvements and are entitled to the value of improvements effected by them in the plaint schedule property, I am of the considered opinion that the execution court could not have even if the defendants satisfy the definition of the term tenant, held that they are entitled to cut and remove the trees standing in the plaint schedule property. 6. That apart, the case set out by the defendants in the O.P.(C).No.2480 of 2013 ..5.. written statement was that the plaint schedule property is part of the property covered by Ext.A4 sale deed. The trial court on an analysis of the evidence oral and documentary available in the case held that the property conveyed to the plaintiffs as per Ext.A4 is a large tract of land 1.99 acres in extent, that it has well defined boundaries and is also lying at a different level. The trial court held that the plea raised by the defendants that the plaint schedule property is included within the four boundaries of Ext.A4 sale deed is unacceptable. The said finding has attained finality. Section 2(b) of the Kerala Compensation for Tenants Improvements Act, 1958 defines the term “improvement” to mean any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding is let, mortgaged or occupied, but does not include such clearances, embankments, levellings, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary course of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry. Going by the said definition the improvement must be suitable to the land and consistent with the purpose for which the holding is let, mortgaged or occupied. Under section 2(d)(iii), only a person who comes into possession of land belonging to another person and makes improvement thereon in the bonafide belief that he is entitled to make such improvements O.P.(C).No.2480 of 2013 ..6.. falls within the definition of the term tenant. Section 2(d)(i) and 2 (d)(ii) of the Kerala Compensation for Tenants Improvements Act, 1958 have no application in the case on hand. It is evident from the pleadings and the materials on record that the property conveyed to the defendants as per Ext.A4 sale deed has well defined boundaries and is a large tact of land 1.99 acres in extent situate on a level different from the plaint schedule property. The defendants cannot therefore be heard to contend that they were under the bonafide belief that they were entitled to make improvements in the neighboring property, which was situate on a different level and was not part of the property conveyed to them as per Ext.P1. Therefore on the merits also, I am of the considered opinion that no interference is called for. The original petition fails and is accordingly dismissed. Sd/- **P.N.RAVINDRAN, JUDGE.** rkc.