WP(C).No. 14480 of 2005(W)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929** ## **WP(C).No. 14480 of 2005(W)** **-------------------------OS.118/1982 of MUNSIFF COURT,VARKALA** **....................** **PETITIONER:** - **--------------------** **MANIKANTAN, S/O.VASUDEVAN, COMPANY EMPLOYEE, MANEESH MANDIRAM, DECENT MUKKU, MARUTHIKUNNU P.O., NAVAIKULAM, KUDAVOOR VILLAGE. ( D I E D)** ## ***ADDL.P2 TO P4 ARE IMPLEADED:** - **P2. S.ANILAKUMARI, W/O.LATE MANIKANTAN, MANISH MANDIRAM, MARUTHIKUNNU P.O., NAVAIKULAM, DECENT MUKKU, THIRUVANANTHAPURAM DISTRICT.** - **P3. MANEESH M.A., SON OF LATE MANIKANTAN, ..DO...DO....** - **P4. ANEESH M.A., AGED 12, SON OF LATE MANIKANTAN, RESIDING AT ..DO..DO... REPRESENTED BY MOTHER AND NEXT FRIEND S.ANILAKUMARI RESIDING AT ...DO..DO..DO...** - **(*ADDL.P2 TO P4 ARE IMPLEADED AS PER ORDER DT. 8/12/2006 IN I.A.NO.16441/06)** - **BY ADV. SRI.P.R.VENKETESH SRI.ABRAHAM GEORGE JACOB** **RESPONDENTS:** - **-------------------------** ## **1. KUMARAN BHASKARAN,** - **KUDAVOORKONATH CHERUVILA VEEDU,NAVAIKULAM.** **2. KUMARAN SREEDHARAN, DO. DO. DO.** ## **3. KUMARAN NANU, DO. DO. DO.** ## **4. KUMARAN LAKSHMI, DO. DO.** **BY ADV. SRI.SEBASTIAN DAVIS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.14480/2005 W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF ORDER DTD. 25/02/2004 IN E.A.223/03 IN EP.22/99 IN O.S.118/82 OF THE MUNSIFF COURT, VARKALA. EXT.P2: COPY OF EA.NO.163/2004 FILED BEFORE THE MUNSIFF COURT, VARKALA. EXT.P3: COPY OF OBJECTION FILED TO E.A.NO.163/04 BY THE RESPONDENT. EXT.P4: COPY OF COMMISSION REPORT DTD. 22/03/04 FILED IN E.A.223/03. EXT.P5: COPY OF ORDER DTD. 5/04/2005 DISMISSING E.A.163/04 BY THE MUNSIFF COURT.** **/TRUE COPY/** **P.S.TO JUDGE** _Kss_ ## **PIUS C. KURIAKOSE, J.** ----------------------------------------------W.P.(C)No. 14480 OF 2005 ----------------------------------------------Dated this the day of March, 2008 ## **J U D G M E N T** An obstructer of the execution proceedings in OS. 118/82 is aggrieved by Ext.P5 order passed by the execution court in EA. No. 163/04 in EP. No. 22/95. EA was filed by him under section 51 of the Transfer of Property Act read with Section 47 of the Code of Civil Procedure for directing the counter petitioners decree holders to have the value of improvements effected on the B schedule property estimated or to sell the decree holders interest in the decree schedule property to the petitioner at the market rate excluding the value of improvements and for ancillary reliefs such as stay of execution proceedings till the estimated value of improvements is paid by the decree holders to the petitioner or the decree holder's interest is sold to the petitioner. The application was resisted by the decree holders who contended that the application was not maintainable. It was contended that the vendor of the petitioner did not have any title over the property which he had conveyed to the petitioner and therefore the petitioner did not derive any right over the property by virtue of the conveyance in his favour. The property it was pointed out was part of the decree schedule property in the suit. The petitioner was WP(C)N0.14480/05 -2- not entitled to make any construction or improvements upon the property. The right of the petitioner over the property can only be subject to the decree. It was pointed out that an earlier application, EA. 223/03 filed by the petitioner for similar reliefs had been disposed of without granting reliefs in view of the legal position. Even if it is true that the petitioner had effected improvements it is not the decree holders obligation to pay value of improvements to the petitioner. The E.A. it was pointed out was a collusive affair between the petitioner and the judgment debtors. The intend behind the EA is to interfere with execution proceedings which protracted to the maximum extent possible. Learned Munsiff considering the rival submissions addressed at the bar noticed that it was a settled principle that an assignee pendente lite will be bound by the decree whether or not he is joined as a party to the suit. Equally well settled pendente lite transferee is only the representative of the vendor and cannot have any right independent of his vendor. Referring to judgment of the Punjab and Haryana High Court in Sardar Harbhan Singh v. Harbauan Singh, AIR 1975 (P & H) 205 learned Munsiff found that being a pendente lite transferee of the decree holder the petitioner has taken the property only subject to the decree and is not entitled to claim value of WP(C)N0.14480/05 -3- improvements. 2. I have heard the submissions of Sri.T.R.Vemkitesh, learned counsel for the petitioner and those of Sri.Sebastian Davis, learned counsel for the respondents. The learned counsel for the petitioner would address his strenuous submissions assailing the impugned order. It was submitted by the learned counsel that the petitioner has invested lacks of rupees in the building which he put up on the decree schedule property. Petitioner was a bona fide purchaser and had been in bona fide possession of the property on the strength of the document of title executed in his favour. Petitioner had effected other improvements on the property. Having put up improvements in good faith the petitioner is entitled to the value of improvements. Section 51 of the Transfer of Property Act was applicable in the case. Counsel then referred to sections 4 and 5 of the Compensation for Tenants Improvements Act and submitted that at least in terms of those sections petitioner is entitled for value of improvements. It was most inequitable to compel the petitioner to forfeit the substantial building which he has put up on the decree schedule property. It was not brought day light under the very eyes of the decree holders that the building was put up by the petitioner. The decree holders did not take WP(C)N0.14480/05 -4- any steps at that time to stop the construction by the petitioner. At lest on consideration of equity and fairness this court may order payment of value of improvements to the petitioner. Sri.Sebastian Davis, learned counsel for the respondent was able to meet all the submissions of the learned counsel for the petitioner. He would cite the judgment of this court in Chinna alias Lekshmikutty Amma v. Muhammad Ali, 1958 KLT 557 wherein Varadaraja Iyengar, J. referring to Section 51 of the T.P. Act has ruled the two essential conditions which required to be fulfilled for getting equity indicated under section 51 viz., the person evicted must be a transferee and he must have made the improvements believing in good faith that he was absolutely entitled. Section 51 is controlled by section 52. The transferee pendente lite cannot claim to have made improvements on the property bona fide. The learned counsel also relied on the judgment of the Punjab and Haryana High Court in Hari Bachan v. Har Bajan, AIR 1975 Punjab & Haryana 205 as well as the decision of the Punjab Chief Court in Amir Chand v. Durga Das and others, 1916 (34) Indian Cases 957. Both these decisions take the view that a pendente lite transferee is not entitled for value of improvements. Pendente lite transferred will not come within the ambit of section 51 since the WP(C)N0.14480/05 -5- expression “definite title” will not apply to such situations. Counsel argued on the basis of the commentaries of the Transfer of Property Act. Pendente lite transferee cannot be a tenant for the purpose of Compensation for Tenants Improvements Act. Having considered the ratio of the various decisions cited before me by Mr.Sebastian Davis and having guaged the impugned order by the yardsticks which are available for exercise of supervisory jurisdiction of this court under Article 227 I have no difficulty to hold that there is no warrant for invocation of the above jurisdiction on Ext.P6. However, considering the human side of the matter I felt that this is a fit case where the party should explore possibilities of rapprochement. Mr.Sebastian Davis submitted that his clients are in impecunious circumstance will not be able to pay the value of the socalled improvements to the petitioner. It was suggested that the petitioner purchased the decree holders interest in the property I directed both parties to appear before this court and to explore possibilities of a settlement with the help of their respective counsel. On 17-9-07 the following order was passed. “Both parties are present. But according to the petitioners, the market value of the property cannot be more than Rs.10,000/- WP(C)N0.14480/05 -6- per cent. Respondents do not agree. Mr.Sebastian on their behalf would submit that in respect of another plot situated in proximity to the subject property, the parties compromised for Rs.65,000/- per cent, and the present property which is having more advantages should fetch at least Rs.one lakh per cent. However, the learned counsel Mr.Sebastian submitted that he may be able to prevail upon his clients and make them come down to Rs.75,000/- per cent. Post on 28-9-2007.” Later on 28-9-07 the following order was passed. “Post after one month. The parties are directed to explore all possibilities of a rapprochement by doing whatever that is necessary. The counsel appearing for the parties in the Court below will also advise the parties suitably and will render all necessary assistance.” It was found that possibilities of a settlement are bleak. This was why arguments were concluded and the case was taken up for judgment. As already stated there is no justification for exercising supervisory jurisdiction or certiorari jurisdiction against Ext.P6. The challenge against Ext.P6 fails. However, even as I dismiss the writ petition confirming Ext.P6 there will be a direction to the execution court to defer delivery of the property in favour of the respondents till 31[st] July 2008. The learned Judge will refer the matter to Lok Adalat conducted under the auspices of the District Legal Services Authority or Taluk Legal Services Committee so that further chances if any for a settlement between the parties can be explored. But even after 31[st] WP(C)N0.14480/05 -7- July 2008 it is revealed that settlement is out of question the learned Munsiff can order delivery and ensure that respondents secure the fruits of the decree. **(PIUS C.KURIAKOSE, JUDGE)** ksv/