K.T. Thomas v. Anna @ Akkamma John

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 WP(C).No. 18714 of 2008(C) -------------------------AGAINST THE ORDER IN EP 351/2007 IN OS.136/1986 of PRL.SUB COURT,KOTTAYAM .................... PETITIONER: PETITIONER -------------- K.T. THOMAS, KOTTUNKAL HOUSE, THALAPPALAM VILLAGE, MELAMPARA KARA, MEENACHIL TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: RESPONDENTS ------------------------ ANNA @ AKKAMMA JOHN, MAPPIYANIYIL HOUSE, BHARANAGANAM VILLAGE, BHARANANGANAM KARA, MEENACHIL TALUK. BY ADV. SRI.R.HARIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR, J.** ------------------------------- W.P.(C) No.18714 of 2008 ------------------------------- Dated this the 24[th] June, 2008. ## **J U D G M E N T** Fourth defendant in O.S.No.136 of 1986 on the file of Sub Court, Kottayam, fourth respondent in the Execution Petition, filed Ext.P1 petition to appoint a commission to re-value the improvements before his eviction. Under Ext.P3 order, the petition was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. The learned counsel appearing for petitioner and the respondent were heard. 3. The learned counsel appearing for the petitioner pointed out that as per the final decree, based on the report submitted by the Commissioner in 2001, decree court fixed the value of improvements to be paid to the petitioner in respect of 49.75 cents, shown as plaint 'C' schedule in green colour, in Ext.C1(b) plan, as Rs.34,000/=. Though the other defendants challenged the final decree before this Court in RFA.Nos.500/2004 and 81/2005, petitioner did not **W.P.(C) No.18714/2008** 2 challenge the final decree. As per the judgment dated, 2.2.2007, appellate court modified the final decree on the quantum of mesne profits, confirmed the final decree with regard to all other aspects. E.P.No.351 of 2007 was filed for execution of the decree by respondent-plaintiff-decree holder. E.A.No.92/2008 was then filed by petitioner contending that though value of improvements was fixed in the final decree, he is entitled to get value of improvements as on the date of taking delivery of the property and, therefore, a commission is to be appointed to value the improvements. It was opposed by the respondent contending that value of improvements was fixed by the final decree court which was not challenged by the petitioner, and has become final by the judgment of this Court, and, therefore, petitioner is only entitled to get the value of improvements, fixed in the final decree, and no commission is to be appointed. 4. The learned counsel for the petitioner argued that though in the final decree, value of improvements was fixed, as provided under Sections 4 and 5 of The Kerala Compensation for Tenants Improvements Act, 1958, (for short 'the Act'), value of improvements is to be re-valued and fixed as on the date of eviction **W.P.(C) No.18714/2008** 3 and in the final decree, value of improvements was fixed based on the report submitted by the Commissioner in 2001, and for a coconut tree which did not start yield at that time, only Rs.100/= per tree was fixed as compensation, and by the time the property is being taken delivery of from the petitioner, it has already started yielding, and in that case, petitioner is entitled to get value of improvements as on that date, and hence, it is necessary to appoint a commission to re-value the improvements. Relying on sub-section (3) of Section 5 of the Act, learned counsel argued that a judgment debtor is not only entitled to value of improvements effected subsequent to the date of the decree, but is also entitled to get re-valuation of the improvements, which was adjudged in the decree, and, therefore, finding of the executing court is not sustainable. Relying on the Full Bench decision of this Court in **Cherian Mathai v. Narayana Pillai** (1960 KLT 1192 (FB); **Padmanabhan Nair v. Raghavan Nair** (1964 KLT 1019); the Full Bench decision in **Varkey Paily v. Kurian Augusthy** (1967 KLT 189); **Fr.Mathew v. Kuttyamma** (1988 (2) KLT 87) and the decision in **Veebros Freight Carriers and another v. Eshita Agency, Kochi,** (AIR 2004 Kerala 307), it was argued that Ext.P3 order is not sustainable. **W.P.(C) No.18714/2008** 4 5. The learned counsel appearing for the respondent argued that petitioner is only the son of the third defendant who is the brother of the respondent and he is claiming right over Item No.3, based on a gift Deed executed in his favour and he is not a tenant coming within the ambit of the Act, and would only be who stepped into the shoes of the co-owner, his father, along with the respondent, and, therefore, petitioner is not entitled to get the value of improvements re-valued, based on Section 5(3) of the Act. 6. In the preliminary decree, trial court did not grant value of improvements. But this Court left open that question to be decided in the final decree. In the final decree, accepting the case of the petitioner that he effected improvements without any doubt about the absolute title of the donor, which was changed due to the decision of the Apex Court in Mary Roy's case, it was found that petitioner is entitled to value of improvements. The judgment in the final decree shows that though the date available in the report was not sufficient enough to fix the value of improvements, final decree court relying on the report submitted to the Commissioner, fixed the value of improvements due to the petitioner as Rs.34,000/=. The quantum of **W.P.(C) No.18714/2008** 5 value of improvements was not challenged by filing an appeal. But the question is whether that will dis-entitle petitioner from claiming the value of improvements due to him at the time of eviction. If petitioner is entitled to the benefit of the Act, as provided under sub-section 3 of Section 5, even though value of improvements was adjudged in the final decree, he is entitled to get re-valuation of the improvements so adjudged in the final decree, at the time of eviction, which could only be at the time when delivery is taken pursuant to the final decree. The position has been settled by a catena of decisions of this Court, right from Cherian Mathai v. Narayana Pilla **i** (1960 KLT 1192 (FB) to to the subsequent Full Bench decision in Varkey Paily v. Kurian Augusthy (1967 KLT 189). A learned Single Judge of this Court in Padmanabhan Nair v. Raghavan Nair (1964 KLT 1019), considering the decision of the Madras High Court in **Ammu v. Nagappan Nair** (AIR 1936 Madras 653), found that decision of the Madras High Court was not brought to the notice of the Full Bench, and, therefore, that view was not considered by the Full Bench. Nevertheless, it was held that the Single Judge is bound by the decision of the Full Bench in Cheriyan Mathai's case, and, therefore, it can only be held that a tenant if entitled to the benefit under the Act is entitled to get value of **W.P.(C) No.18714/2008** 6 improvements re-valued, even though value of improvements were earlier adjudged in the decree. Though learned counsel appearing for the respondent argued that petitioner being a donee from a co-owner cannot claim to be a tenant as defined under Section 2(d) of the Act, fact that petitioner is entitled to value of improvements as found by the final decree court cannot be questioned by the respondent. According to the learned counsel appearing for the respondent, the value of improvements was granted not under the provisions of the Act, but as provided under Section 51 of the Transfer of Property Act. 7. Even if that argument is accepted, as far as the value of improvements to which the petitioner is entitled to, there may not be any difference and the value of improvements that is to be paid under Section 5(3) of the Act is also the same. 8. Section 51 of the Transfer of Property Act reads as follows:- _**“51. Improvements made by bona fide holders under defective titles**_ :- When the transferee of immovable property makes any **W.P.(C) No.18714/2008** 7 improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them. “ 9. Under Section 51 of Transfer of Property Act, the amount to be paid in respect of improvements shall be the estimated value of the improvements at the time of eviction. As interpreted by the Full Bench, value of improvements is to be re-valued at the time when petitioner is dispossessed and delivery is given to the respondent. If so, what is to be paid to the petitioner is the value of improvements estimated at that time. Hence, learned Munsiff was not justified in dismissing Ext.P1 application. **W.P.(C) No.18714/2008** 8 Ext.P3 order is therefore quashed. E.A.No.92/2008 stands allowed. Learned Sub Judge is directed to appoint a commission to re-value the value of improvements for which petitioner is entitled to. It is made clear that petitioner is only entitled to get the value for the improvements effected till the date of the final decree and not for any value of improvements effected subsequent to the final decree. But he is entitled to get value for the improvements as on the date of taking delivery. It is further made clear that this order is confined to the petitioner, who is claiming Item No.3 of the property and the order will not prevent the executing court from delivering the remaining properties. Executing Court is to direct the Commissioner to expedite the work and dispose the matter without delay. The writ petition is disposed accordingly. ## **M.SASIDHARAN NAMBIAR, JUDGE** **nj.**