Thenkunnath Kunniyoor Sankara Kurup v. Kodakkal Narayanan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 SA.No. 834 of 1995(G) --------------------AS.62/1994 of PRINCIPAL DISTRICT COURT, THALASSERY OS.89/1990 of SUB COURT, PAYYANNUR .................... APPELLANT(S)/RESPONDENT/DEFENDANT: -------------- **(*)** THENKUNNATH KUNNIYOOR SANKARA KURUP, PERALAM AMSOM & DESOM, KOZHUMMAL, TALIPARAMBA TALUK. (DIED. LRS IMPLEADED) ## SUPPLEMENTAL APPELLANTS 2 TO 4: 2. A.NARAYANI 3. UNNI RAJAN 4. SINDHU ALL OF KALATHIL HOUSE, KANHANGAD SOUTH P.O. PATTANAKKADU. **(*)** SUPPLEMENTAL APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 27.1.1999 IN CMP NO.171/1999. BY ADV. SRI .H.SIVARAMAN RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- **(**)** (KODAKKAL NARAYANAN NAIR, SON OF KANNAN NAIR) **(***),** PERALAM DEVASWOM TRUSTEE BOARD CHAIRMAN, PERALAM AMSOM AND DESOM, KOZHUMMAL P.O., TALIPARAMBA TALUK. **(**)** THE NAME AND ADDRESS OF THE SOLE RESPONDENT IS SUBSTITUTED BY “T.K.KUNHIKRISHNA PODUVAL, S/O.K.KUNHI RAMAN ADIYODI” AS PER ORDER DATED 11.6.1999 IN CMP NO.866/1999. SA NO.834/1995 2 - **(***)** NAME AND ADDRESS OF THE RESPONDENT IS SUBSTITUTED AS “K.T.MADHAVAN NAMBIAR, S/O.SANKARAN NAMBOOTHIRI, PERALAM, KOZHUMMAL P.O., KANNUR DISTRICT, PERALAM DEVASWOM TRUSTEE BOARD CHAIRMAN, PERALAM AMSOM AND DESOM, KOZHUMMAL P.O., TALIPARAMBA TALUK.” AS PER ORDER ORDER DATED 10.6.2009 IN IA NO.1071/2009. ADV. SRI.K.K.MUHAMMED RAVUF SRI.SAJAN VARGHEESE K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 5.3.2010 ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **THOMAS P. JOSEPH, J.** **-------------------------------------S.A.No.834 of 1995 & Cross Objection -------------------------------------Dated this the 5[th] day of March, 2010.** ## **JUDGMENT** Second Appeal and cross objection arise from judgment and decree of learned Principal District Judge, Thalassery in A.S.No.62 of 1994 which arose from judgment and decree of learned Sub Judge, Payyannur in O.S.No.89 of 1990. Respondent/plaintiff, a Devaswom claiming title over the suit property sought its recovery from appellant/defendant with mesne profits alleging that the latter is a trespasser in possession of the said property. Appellant had claimed that he got assignment of the property from Kunjappan Nair (DW3) who in turn claimed to have got the property under an oral lease from the respondent. But there was no such lease in favour of DW3 and hence the assignment in favour of appellant is void. Respondent has also a contention that appellant had cut and removed certain trees from the suit property. Appellant contended that DW3 was holding the property under an oral lease from the respondent and in the year, 1974 DW3 assigned the property in his favour as per Ext.B1, registered assignment deed. At the time of assignment property was barren which he improved spending about Rs.26 lakhs. He is not liable to be evicted and at any rate is entitled to get value of improvements since believing bonafide that he is a tenant of the property he has effected improvements. Trial court found that appellant has no title over the property and allowed recovery of possession **SA No.834/1995** 2 subject to the respondent paying value of improvements. Claim of respondent for mesne profits disallowed. Respondent, aggrieved by the decree to the extent it disallowed mesne profits and directed payment of value of improvements appealed to the District Judge. Appellant preferred cross objection against the decree for eviction. Learned Principal District Judge dismissed the cross objection and allowed the appeal in part to the extent that appellant was found not entitled to get value of improvements. Rejection of claim for mesne profits was confirmed. Aggrieved, appellant has preferred this Second Appeal challenging the appellate decree regarding value of improvements. Respondent has preferred a cross objection against rejection of its claim for mesne profits by the first appellate court. 2. Following substantial questions of law are framed for a decision: i. Whether first appellate court has gone legally wrong in holding that appellant has not come into possession of the property and effected improvements on the bonafide belief that he is entitled to make such improvements. ii. Have not the courts below gone wrong in disallowing mesne profits to the respondent. **SA No.834/1995** 3 It is contended by learned counsel for appellant placing reliance on the decision of the Full Bench of this Court in **Augusty Devassia v. Haridasan Nair (1998 (2) KLT 6)** that on the facts and circumstances of the case first appellate court ought to have found that appellant came into possession of the property under the bonafide belief and on that belief effected improvements. Learned counsel for respondent would contend that the decision has no application to the facts of this case and the evidence on record. 3. Though appellant examined Kunjappan Nair, his assignee and alleged lessee under respondent, as DW3 neither he nor the appellant could produce any reliable evidence to show that DW3 got possession of the suit property from the respondent under any lease, oral or otherwise. There is no evidence to show that Kunjappan Nair (DW3) was in possession of the property as a lessee. Ext.B1, assignment deed of the year 1974 says that claiming to be an oral lessee of the property DW3 assigned the property to the appellant. Evidence of appellant as DW1 is that in the year 1976 he learnt that DW3 had no tenancy right over the suit property. First appellate court has referred to the evidence on record and held that appellant cannot be said to have come into possession of the property under any bonafide belief and made improvements in the bonafide belief that he is entitled to to do. so. **SA No.834/1995** 4 4. The decision of the Full Bench relied on by the learned counsel for appellant states with reference to Section 2(d) (iii) of the Kerala Compensation for Tenants Improvements Act, 1958 (for short, “the Act”) that it cannot be held that in all cases where a transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document will not be entitled to claim compensation for value of improvements under Clause (iii). There may be cases where the document under which the person concerned got possession was later found to be void or voidable. Going by the decision of the Full Bench in every case where document is later found to be void or voidable person in possession cannot be denied benefit of Section 2(d)(iii) of the Act. The Full Bench has hastened to add that the question will depend on the facts and circumstances of the case. As such there could be no hard and fast rule as to when all a person in possession of the property can be said to have made improvements in that property on the bonafide belief that he is entitled to do so. 5. In the case on hand even the case of appellant as DW1 is that in the year 1976 he learnt that DW3, his assignor had no tenancy right in the suit property. That means in the year, 1976 appellant learnt that he could acquire no valid title under DW3. If that be so, possession and enjoyment of the appellant and making improvements from 1976 onwards can by no stretch of imagination be said to be in the bonafide belief that he is entitled to do so. So, even as per the evidence of appellant his possession atleast from 1976 is that of a trespasser. To attract Clause (iii) of Section 2(d) of the Act appellant **SA No.834/1995** 5 should have made the improvements in the bonafide belief that he is entitled to do so. Hence appellant cannot claim value of improvements from 1976 onwards even as per his version. Possession of the appellant is akin to that of a trespasser. The consistent view taken by this Court in **Rev. Fr.** **K.C.Alexandar v. State of Kerala (1965 KLT 666), Chacko George** **v. Karthiyani Amma (1988 (2) KLT Short Note No.93)** and **Sulaiman v. Abubacker (1990 (2) KLT Short Note No.22)** is that a trespasser is not entitled to get value of improvements since trespasser cannot afford to claim that he got possession of the property under any bonafide belief or that he made improvements in the bonafide belief that he is entitled to make such improvements. 6. “Bonafides” involve due enquiry as to the real state of affairs. In this case, neither the appellant nor DW3 could produce any document to show about the alleged tenancy in favour of DW3 or the latter being in possession as such. There is also no evidence to show that appellant had made any enquiry with anybody, not to say with the respondent whether DW3 had tenancy right over the suit property. Instead, he merely acted on the word of DW3. That can only be at his risk. As such I am unable to accept the contention of learned counsel for appellant that atleast during 1974-76 appellant must be deemed to have been in possession of the property under a bonafide belief that he is entitled to hold the same and improved it. If that be so, there is no reason to **SA No.834/1995** 6 interfere with the finding entered by the learned Principal District Judge that appellant is not entitled to get value of improvements. 7. Learned counsel for respondent after consulting Shri Gangadharan, a representative of the respondent who is present in court submitted that respondent is prepared to pay Rs.25,000/- to the appellant for whatever labour he has done in the suit property notwithstanding that he is not entitled to such payment. Learned counsel however submitted that the amount could be paid to the appellant only after he vacated the property within a time limit to be fixed by this Court. Though I stated that appellant is not entitled to get value of improvements, fact remained that he has done some labour in the suit property. At the same time, I must also bear in mind that appellant has been benefiting himself by possessing and enjoying the property not belonging to him, free of cost and respondent was deprived of the right to enjoy its property. In the circumstances I consider the suggestion made by counsel for respondent as reasonable. Counsel for the respondent has stated that in the above circumstances he is not pursuing the cross objection claiming mesne profits. The submission is recorded. 8. The substantial question of law framed on behalf of the appellant is answered in the above lines. So far as the substantial question of law framed at the instance of the respondent is concerned, since the cross objection is not being pursued it is not necessary to enter into a finding in that regard. Resultantly Second Appeal is disposed of in the following lines: i. Judgment and decree of the first appellate court will stand **SA No.834/1995** 7 confirmed. ii. Respondent shall deposit in the trial court within two months from this day the sum of Rs.25,000/- (Rupees Twentyfive thousand only) for payment to the appellant. iii. Appellant is granted four months' time to surrender possession of the suit property to the respondent. iv. Appellant shall be entitled to withdraw the amount deposited as stated in clause No.ii above on such surrender of possession. v. Cross objection filed by the respondent in the circumstance is closed. vi. Parties shall suffer their respective cost in the Second Appeal. C.M.P.No.2003 of 1995 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** **SA No.834/1995** 8 **Thomas P.Joseph, J.** **S.A.No.834 of 1995 JUDGMENT** **5[th] March, 2010**