Madhusoodhanan Nair v. Merrikutty, Johnkutty and Ramachandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930** ## **WP(C).No. 1624 of 2006(R)** **-------------------------------------** **OS.383/2000 OF PRL.MUNSIFF COURT,NEDUMANGAD** **....................** ## **PETITIONER:** - **-------------------** **MADHUSOODHANAN NAIR, S/O.VELAYUDHAN PILLAI,RESIDING AT CHERUPPADI VEEDU, CHANGA MURI, VELLANAD P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.K.B.PRADEEP.** **RESPONDENTS:** - **-------------** **1. MERRIKUTTY, W/O. VARGHESE, RESIDING AT MERRY BHAVAN, NEDIYAVILA, CHANGA MURI, VELLANAD P.O., THIRUVANANTHAPURAM.** ## **2. JOHNKUTTY, S/O. VARGHESE, -DO- -DO-.** **3. RAMACHANDRAN, S/O.KESAVA PANICKER, RESIDING AT K.P. VILASAM, CHANGA MURI, VELLANAD P.O., THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.NAGARAJ NARAYANAN, ADV.SRI.SAIJO HASSAN, ADV.SRI.A.S.SABU.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.1624/2006-R:** ## **APPENDIX** **PETITIONER'S EXHIBIT:** **EXT.P.1: COPY OF THE ORDER DTD. 17/12/2005 IN E.P. NO. 35/2005 IN O.S. NO. 383/2000 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, NEDUMANGAD.** ## **RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **prv.** ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No. 1624 OF 2006 ----------------------------------------------Dated this the 26th day of March, 2008 ## **J U D G M E N T** Under challenge in this writ petition filed under Article 227 by the decree holder is Ext.P1 order of the execution court. The suit OS.383/2000 was for redemption of mortgage over the plaint schedule property which as per the mortgage deed is paddy field. That suit was tried along with OS.298/2000 filed by respondents 1 and 2 for a decree of specific performance and prohibitory injunction restraining the petitioner from trespassing into the plaint schedule property and from committing acts of waste therein. O.S. No. 299/2000 was dismissed and O.S.383/2000 filed by the petitioner was decreed permitting the petitioner to redeem the mortgage and recover possession of the decree schedule property subject to deposit of Rs.13,000/- being mortgage money before the court. The respondents' claim for value of improvements was relegated to the execution side. In the execution court the respondents got a commission for assessing the value of improvements issued and the commissioner filed Ext.C1 report assessing the value of improvements at Rs.14,490/-. The claim for value of improvements was resisted by the petitioner who contended that the claim for amounts expended for WP(C)N0. -2- reclaiming the land which was originally paddy field and converting the same as dry land would not be allowed because such a conversion was against the terms of the mortgage. It was also contended that the petitioner wanted to retain the property as paddy field itself and hence from his point of view the conversion did not amount to an improvement of the property. The conversion was illegal being contrary to the terms of the mortgage and against the wishes of the mortgagor. The execution court found that there was no evidence to hold that reclamation of the property was with the permission of the mortgagor decree holder. But taking the view that the reclamation has been done for agricultural purpose as contemplated under section 3(f) of the Kerala Compensation for Tenants Improvements Act 1959 the learned Judge the learned Judge accepted the commissioner's report which determined the value of improvements at Rs.14,419/and ordered that delivery can be taken by the petitioner only upon deposit of the said amount. Assailing the impugned order Sri.K.B.Pradeep, learned counsel for the petitioner would argue that execution court has erred seriously in upholding the claim of the respondents for value of improvements effected by them in violation of the terms of the mortgage. Counsel submitted that the so called WP(C)N0. -3- improvements have been effected not only in violation of the terms of the mortgage but also in violation of the Kerala Land Utilisation Order and therefore per se illegal. Improvements which are the result of illegal action should not have been recognised by the court. This was because improvements were effected during the currency of the suit and the subsistence of order of prohibitory injunction restraining the respondents from converting the mortgage property. Lastly Mr.Pradeep submitted that amount quantified by the commissioner is excessive. Mr.Pradeep would fortify his submissions with judicial precedents. The judgment of this court in Krishnan Nair v. Kunjan Pillai, 1968 KLT 457 was relied on by Mr.Pradeep to contend that conversion of Nilam into garden land however desirable it may be from the point of view of a mortgagee or tenant, is a substantial alteration of the character of the holding and cannot therefore be considered to be an improvement and also that the improvers will not be entitled for any compensation on account of such improvement. Referring to sections 58, 60 and 62 of the Transfer of Property Act, the learned counsel submitted that the moment mortgage money is deposited by the mortgagor the relationship between the mortgagor and mortgagee comes to an end. In this context, learned counsel referred to sections WP(C)N0. -4- 2(f) , 4 and 5 of the Compensation for Tenants Improvements Act and submitted on the authority of the Full Bench judgment of this Court in Paily v. Augusthy, 1967 KLT 189 (F.B.) that the improvements should have been made while the concerned person was a tenant i.e., during the subsistence of the mortgagor mortgagee relationship and that a quantum tenant i.e., person in possession after determination of tenancy will not be considered as a tenant for the purpose of the Compensation for Tenants Improvements Act. Mr.Pradeep would place before me the Commissioner's report which would indicate that most of the trees which have been valued by the Commissioner were planted only some four years prior to the visit of the commissioner which was on 25-9-05 a circumstance which give some support to the petitioner's case that the improvements have been effected after the lease commenced and during the subsistence of the injunction order. 2. Sri.Nagaraj Narayanan, learned counsel for the contesting respondents per contra would refer to section 3(f) of the Compensation for tenants improvements Act and section 17 and its proviso. Mr.Nagaraj Narayanan also did not lag behind in citing authorities. He tried to distinguish the judgment in 1968 KLT 457 (supra) on facts. He relied on the judgment in Madhavan Sreedharan WP(C)N0. -5- v. Mandakini Sarada, 1970 KLT 1055 which certainly lays down that reclamation of land for agricultural purposes is an improvement and compensation has to be fixed for the same. For the same proposition he relied on the judgment of this court in Ikkandan v. Kochappi Arankan, 1956 KLT 325, the judgment of Kochu Thommen, J. in Bhaskaran v. Damodaran, 1978 KLT 459 was relied on by Mr.Nagaraj Narayanan to argue that if the deposit of mortgage money is pending application submitted by the tenant for compensation under the Tenants Improvements Act the relationship between mortgagor and mortgagee will not come to an end for the purpose of determining the entitlement of compensation and the mortgagee who continues to be in actual possession will be entitled for compensation. He also referred to certain passages in the judgment of the Supreme Court in Parameswaran Govindan v. Krishnan Bhaskaran, 1992(1) KLT 577 in suppport of his argument that in this case notwithstanding deposit of the mortgage money the respondents will be entitled for payment of compensation of improvements. Interestingly one of the dicta laid down by the Supreme Court in this case is that in terms of sections 60 to 64 and 83 of the Transfer of Property once mortgage money is deposited the contractual relationship between mortgagor and WP(C)N0. -6- mortgagee will cease. WP(C)N0. -7- 3. Having considered the rival submissions addressed at the Bar and having gone through the decisions cited for the purpose of understanding the ratio emerging from those decisions I am of the view that there is merit in the submissions of Mr.Pradeep that those improvements which have been effected by the judgment debtors in violation of order of Injunction passed by the court and those improvements effected after the mortgage money was deposited are not liable to be compensated. The commissioner has only reported as to what are the existing improvements and as to what amount was expended for reclaiming the mortgaged property for raising the improvements which are mostly coconut trees and other trees. An enquiry as to when exactly these improvements were effected has not been conducted by the execution court. Moreover, it is seen that the execution court did not have the advantage of considering ratio of the judgments which were cited before me by the learned counsel. For both these reasons the matter should go back to the execution court. I set aside the impugned order and remit the matter to the execution court for holding necessary enquiry regarding the point of time when improvements were effected with reference to the subsistence of injunction orders and deposit of mortgage money and will pass fresh WP(C)N0. -8- orders. While passing fresh orders the learned Munsiff will take into account the ratio emerging from the decisions which were cited before me if they are cited before the learned Munsiff also. 4. At the same time it appears to me that despite all the objections taken by the petitioner in this court regarding conversion of paddy fields it is very unlikely that the petitioner when put in possession will reconvert the decree schedule property into its original state as paddy fields. In other words I feel that the petitioner will be enjoying the improvements effected by the respondents. Considering that, I direct the learned Munsiff to explore the possibility of a settlement between the parties by summoning them to the court before the commencement of enquiry. Enquiry as ordered herein above need be conducted only if it turns out that settlement is not possible. ## **(PIUS C.KURIAKOSE, JUDGE)** ksv/ WP(C)N0. -9-