Full Judgment Text
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PETITIONER:
SHAMMA BHATT & ORS.
Vs.
RESPONDENT:
T. RAMAKRISHNA BHATT
DATE OF JUDGMENT27/03/1987
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
OZA, G.L. (J)
CITATION:
1987 AIR 1348 1987 SCC (2) 416
JT 1987 (2) 1 1987 SCALE (1)636
ACT:
Kerala Compensation for Tenants Improvements Act.
1958--Ss. 2(d) and 5--Tenant--Compensation for
Improvement--When available.
HEADNOTE:
The appellants’ father had obtained sale of the property
in question during the minority of the respondent through
his widowed mother, who was acting as his guardian. The
respondent, on attaining majority, filed a suit for declara-
tion that the said sale-deed was invalid and not binding
upon him and for recovery of possession of the property. The
judgment and decree of the trial Court dismissing the suit
was affirmed by the Appellate Court. In Second Appeal, the
High Court set aside the judgments of the Court below,
allowed the appeal and decreed the suit, directing recovery
of possession of properties on payment of Rs.4,700 being the
sale consideration and a sum of Rs.4,164 being the compensa-
tion for improvement. The Special Leave Petition filed by
the appellants was dismissed.
The respondent filed execution, which was resisted by
the appellants on the ground that the properties could not
be ordered to be delivered without payment of the value of
improvements effected by them subsequent to the year 1952.
They also filed an application for the issue of a commission
to revalue the improvements, claiming that they had effected
improvements to the tune of Rs.gO,O00. The respondent con-
tested this application denying that the appellants had made
any improvements and contended that the question of improve-
ments had been concluded by the judgment of the High Court
in the Second Appeal. The executing Court dismissed this
petition. The District Judge allowed the appeal filed by the
appellants and set aside the order of the executing Court.
The High Court set aside the judgment of the District Judge
and restored the order of the executing Court and directed
recovery of the property. The High Court observed that "the
sum of Rs.4,164.8.0 was directed to be paid not because the
respondents were entitled to it, but because the appellant
agreed to pay it.’’
In the appeal to this Court, on behalf of the appellants it
was
701
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contended: (1) that the judgment of the High Court was wrong
and that the conclusion arrived at by the High Court was as
a result of confusion regarding the pleadings in the case
and the question of law involved; (2) that at the trial
stage an issue was struck as issue No. 8 regarding the value
of improvements which was adjudicated and the value of
improvements was adjudged; (3) that the appellants were
tenants within the meaning of s. 2(d) of the Kerala Compen-
sation for Tenants Improvements Act, 1958 (Act 29 of 1958)
and that their claim for value of improvements was made on
the strength of s. 5 of the Act and, therefore, they are
entitled to the value of improvements; and (4) that the
value of improvements has to be ascertained under the Act on
the execution side and their claim cannot be defeated by
flourishing the judgment of the High Court and the dismissal
of the S.L.P.
Dismissing the Appeal,
HELD: 1. The suit was filed in 1952. At that time there
was no enactment available for the defendant to claim value
of improvements. Neither in the original written statement
nor in the additional written statement dated 15.11.1954,
did the defendants claim the value of improvements under the
Act. Though at the execution stage a plea was raised under
s. 5 of Act 29 of 1958, but in the Judgment in the Second
Appeal No. 464 of 1964 dated 27.11.1969, the Division Bench
decided that no claim for improvements was made either under
s. 51 of the Transfer of Property Act or under s. 4 of Act
29 of 1958. Moreover, the High Court also found that no
objection was taken by the appellants in the lower Appellate
Court or before the High Court to the finding that in case
of eviction the defendant would be entitled to Rs.4,164.8.0.
as compensation. This judgment was rendered when Act 29 of
1958 had already come into force. Against this judgment a
special leave petition was filed and dismissed. Thus, there
is a concluded finding against the appellants that they were
not entitled to anything more than the value of improvements
decreed by the trial Court. [706H; 707A-C]
2. Section 5 comes into operation only when a defendant
against whom a suit for eviction is instituted establishes a
claim for compensation under the Act. The Judgment of the
High Court rendered in 1969 has clearly held that the value
of improvement awarded was not under s. 4 of the Act but was
an amount agreed by the plaintiff. The appellants cannot
succeed and have not succeeded in satisfying this Court that
they ever made a claim for compensation under s. 4 of the
Act and succeeded in such a claim. Therefore, their further
claim for getting the improvements revalued cannot be ac-
cepted. [707E-G]
702
3. The question whether a person who came into posses-
sion of the properties of a minor could be brought within
the definition of ’tenant’ in s. 2(d)(iii) will have to be
considered in an appropriate case. [707G-H]
4. Purely on an equitable basis, the respondent shall
pay to the appellants a sum of Rs.30,000 in addition to the
amount decreed. On such payment the appellants shall deliver
the property to the respondent. The respondent shall be at
liberty to withdraw the amounts deposited by the appellants
in the trial court pursuant to the order of this Court, if
not already withdrawn. [709B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
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383(N) of 1973.
From the Judgment and Order dated 7.3.1972 of the High
Court of Kerala in S.A. No. 549 of 1971.
G. Viswanath Iyer and Narayan Nettar for the Appellants.
T.S. Krishnamurthy Iyer, Vijay Kumar Verma and Madhu
Moolchandani for the Respondent.
The Judgment of the Court was delivered by
KHALID, J. The appellants are the defendant in O.S. 55
of 1952 in the Sub-Court, Mangalore. Their father had ob-
tained sale of the property involved in this appeal by a
document dated 28-4-1939, executed by the widowed mother of
the respondent-plaintiff who was a minor, aged six years,
she acting as his guardian. After he attained majority, he
filed a suit for a declaration that the said sale deed was
invalid and was not binding upon him and for recovery of
possession thereof. The Trial Court dismissed the suit. In
appeal, the appellate court confirmed the decree and Judg-
ment of the Trial Court. In second appeal, the High Court of
Kerala, by its Judgment, dated 27-11-1969, set aside the
Judgments of the Courts below, allowed the appeal and de-
creed the suit. The decree directed recovery of possession
of the properties on payment of the sum of Rs.4,700 being
the sale consideration and a sum of Rs.4,164 being the
compensation for improvements.
On 15-9-1970, the decree-holder, respondent herein,
filed R.E.P. 68/70 in the Sub-Court, Kasargod, depositing
the amount due under the decree of the High Court and pray-
ing for delivery of the properties from the possession of
the Judgment debtors, the appel-
703
lants. Execution was resisted by the appellants on the
ground that no delivery could be ordered without payment of
the value of improvements effected by them subsequent to the
year 1952. They also filed R.E.A. No. 146/70 for the issue
of a commission to re-value the improvements, claiming that
they had effected improvements to the tune of Rs.80,000. The
respondent contested this application, denied that the
appellants had made any improvements and contended that the
question of improvements had been concluded by the Judgment
of the High Court in the second appeal. The executing Court
dismissed this petition. Aggrieved by this order, the appel-
lants filed an appeal before the District Judge, Tellicher-
ry, who allowed the appeal by his Judgment dated 12th April,
1971 and set aside the order of the executing Court. The
matter was taken to the High Court by way of Execution
Second Appeal. A Division Bench of the Kerala High Court, on
a reference from a learned Single Judge, set aside the
Judgment of the District Judge by its Judgment dated 7-3-
1972 and restored the order of the Subordinate Judge and
directed recovery of the property. The appellants, moved the
High Court for grant of certificate of fitness, which prayer
was declined and hence have filed this appeal, by special
leave.
The suit was filed by the plaintiff within three years-
’of his attaining majority alleging that the assignee took
advantage of the ignorance and helpless condition of the
plaintiff’s mother, who was a young widow and that there was
neither legal necessity nor pressure from the estate for
effecting the sale. He averred in the plaint that there was
a partition decree in his favour in which he had been allot-
ted these properties with outstanding amounting to Rs.5,300
and mesne profits to the extent of Rs.1,549 which were
sufficient to discharge the debts due by the estate. The
entire immovable properties belonging to the plaintiff,
including the family residential house, were alienated. The
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High Court in second appeal on the trial side held that the
alienation was not something which a man of ordinary pru-
dence would have effected, had the properties been owned by
him and thus held it not binding on the plaintiff. The
learned Judges of the Division Bench then considered the
question of the defendant’s right for compensation for
improvements, if any, effected. This claim was denied. In
the written statement filed by the defendant, as noted by
the High Court, all that was claimed was that improvements
had been effected to the tune of Rs.4,000. But no specific
claim was made for compensation in the event of eviction.
The High Court also noted that the averment regarding im-
provements was itself made in the context of denying that
the property would have fetched Rs.11,000 at the time of
sale. In the
704
additional written statement filed by the defendant a claim
was made that improvements to the value of Rs.11,168 had
been effected after the sale date and that under any circum-
stances, the defendants were entitled to just and adequate
compensation for them. The Division Bench adverting to this
aspect of the case held against the appellants with the
following observation:
"The basis of the claim has not been stated
anywhere, and no averments of fact necessary
for attracting section 51 of the Transfer of
Property Act or Section 4 of the Kerala Com-
pensation for Tenants’ Improvements Act, 1958,
have been made. Hence, the claim for value of
improvements would appear to be unsustainable.
However, no objection has been taken by the
appellant in the lower appellate court or in
this Court to the finding of the trial court
that in case of eviction, the defendants would
be entitled to Rs.4,164.8.0 as compensation
for improvements."
It was with these observations regarding improvements that
the appeal was allowed and the suit for recovery decreed.
When the matter reached the High Court in second appeal
on the execution side the matter was heard by another Divi-
sion Bench of the Kerala High Court. The Division Bench
relied upon the following observation in the Judgment of the
Division Bench on the original side and declined relief of
value of improvements to the appellants, with the following
observation:
The Division Bench considered the question of value of
improvements in paragraph 9 of the Judgments and Unnikrishna
Kurup, J. who spoke for the Division Bench has stated in
unequivocal terms:
"Hence, the claim for value of improvements
would appear to be unsustainable. However, no
objection has been taken by the appellant in
the lower appellate court or in this Court to
the finding of the trial court that in case of
eviction, the defendants would be entitled to
Rs.4,164,8.0. as compensation for improve-
ments."
We may in passing on also observe that the appellant had
filed an application for special leave against the first
Judgment in second appeal. which was dismissed. The claim of
value of improvements was
705
rejected by the Division Bench with the following observa-
tion:
"The sum of Rs.4,164.8.0 was directed to be paid, we
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repeat, not because the respondents were entitled to it, but
because the appellant agreed to pay it."
It is with these materials that the present claim of the
appellants for value of improvements has to be considered.
We may indicate at this stage itself that the Commissioner
appointed at the instance of this Court, assessed the value
of improvements at Rs.1,00,031.40, by his report dated
12-10-1972. The learned counsel for the appellant made a
forceful plea that the Judgment of the High Court was wrong
and that the conclusion arrived at by the High Court was as
a result of a confusion regarding the pleadings in the case
and the question of law involved. He stated that at the
trial stage an issue was struck as issue No. 8 regarding the
value of improvements. This question was adjudicated and the
value of improvements was adjudged after due consideration
of this issue. His further submission is that the appellants
were tenants within the meaning of Section 2(d) of the
Kerala Compensation for Tenants Improvements Act, 1958 (Act
29 of 1958), and that the claim for value of improvements
was made on the strength of Section 5 of the Act. He relied
upon a Division Bench ruling in Veerasikku Gounder v. Kuri-
an, 1 in support of his contention that the appellants were
tenants and were entitled to the value of improvements.
The property is situated in the old South Kerala Dis-
trict which formed part of the then Madras Presidency. At
the time the suit was filed, there was no enactment in force
in that area, enabling persons in possession of property
belonging to another to claim value improvements in a suit
for recovery of possession. The area, where the property in
dispute is situated, became part of Kerala when the said
State was formed. When Act 29 of 1958 was enacted, there
were two enactments in existence, applicable to the Travan-
core Cochin and the Malbar Area, regarding the claims for
improvements for tenants in possession. They are the Travan-
core Cochin Compensation for Tenants Improvements Act, 1956
and the Malbar Compensation for Tenants Improvements Act,
1899. Both these Acts were repealed when Act 29 of 1958 was
enacted. Section 2(d) of the new Act defines ’tenant’, the
relevant portion of which reads as follows:
"2(d) ’tenant’ with its grammatical variations
and cognate
706
expression includes--
(i) ..............
(ii) ........
(iii) a person who comes into possession of
land belonging to another person and makes
improvements thereon in the bona fide belief
that he is entitled to make such
improvements."
The appellants contention is that they satisfy this defini-
tion and that, therefore, they are entitled to the benefit
of this Act. Section 4 deals with the entitlement to compen-
sation for improvements for tenants for the improvements
made by them, or their predecessor-in-interest on eviction.
Section 5 states that when in a suit for eviction instituted
against the tenant the plaintiff succeeds and the defendant
establishes a claim for compensation due under Section 4 for
improvements, the Court shall ascertain the amount of com-
pensation and shall pass a decree for payment of the amount
so found due to the tenants. Subsection 3 of this section
gives an additional right to such tenants for value of
improvements effected after the decree by evaluation. We
read the section for a correct understanding of the same:
"5(3) The amount of compensation for improve-
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ments made subsequent to the date upto which
compensation for improvements has been ad-
judged in the decree and the re-valuation of
an improvement, for which compensation has
been so adjudged, when and in so far as such
revaluation may be necessary when reference to
the condition of such improvements at the time
of eviction as well as any sum of money accru-
ing due to the plaintiff subsequent to the
said date for rent, or otherwise, in respect
of the tenancy, shall be determined by order
of the court executing the decree and the
decree shall be varied in accordance with such
order."
It is basing on this Section that the claim is made for
value of improvements by the appellants.
The suit was filed in 1952. At the time there was no
enactment available for the defendant to claim value of
improvements. Neither in the original written statement nor
in the additional written statement
707
dated 15-11-1954, did the defendants claim the value of
improvements under the Act. It is true that at the execution
stage a plea was raised under Section 5 of Act 29 of 1958.
But it is necessary to remember that in the Judgment in the
Second Appeal No. 464 of 1964, the Division Bench decided on
27-11-1969, that no claim for .improvements was made either
under Section 51 of the Transfer of Property Act or under
Section 4 of Act 29 of 1958. Moreover, the High Court also
found that no objection was taken by the appellants in the
lower appellate court or before the High Court to the find-
ing that in case of eviction the defendant would be entitled
to Rs.4,164.8.0 as compensation. This Judgment was rendered
when Act 29 of 1958 had already come into force. Against
this Judgment this Court was moved by filing a special leave
petition and that was dismissed. Thus, there is a concluded
finding against the appellants that they were not entitled
to anything more than the value of improvements decreed by
the trial Court.
In the Judgment under appeal also the High Court has
reiterated the fact that the appellants were being paid the
amount mentioned above not because they were entitled to it,
but because the appellant agreed to pay it. The learned
counsel for the appellants Shri G. Vishwanatha Iyer tries to
over-come the finality of this Judgment with the contention
that the value of improvements has to be ascertained under
the Act on the execution side and his claim cannot be de-
feated by flourishing the Judgment of the High Court and the
dismissal of the S.L.P. We find it difficult to accept the
appellant’s case. Section 5 comes into operation only when a
defendant against whom a suit for eviction is instituted
establishes a claim for compensation under the Act. The
Judgment of the High Court rendered in 1969 has clearly held
that the value of improvement awarded was not under Section
4 of the Act but was an amount agreed by the plaintiff. The
appellants cannot succeed and have not succeeded in satisfy-
ing us that they ever made a claim for compensation under
Section 4 of the Act and succeeded in such a claim. There-
fore their further claim for getting the improvements reval-
ued cannot be accepted.
We do not wish to pronounce upon the question whether a
person like the appellants who came into possession of the
properties of a minor through his young widowed mother could
be brought within the definition of tenant in Section
2(d)(iii). This matter will have to be considered in an
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appropriate case and the correctness of the decision of the
Kerala High Court brought to our notice by the appellant’s
counsel tested then. The appeal has only, therefore, to be
dismissed.
708
However, we feel that some equity has to be worked out
in this case. This Court issued notice in the S.L.P. on
20-6-1972. On 1-9-1972 stay of operation of decree was
granted, and an opportunity was given to enable the parties
to come to a compromise. On 18-9-1972, this Court directed a
Commissioner to be appointed to assess the value of improve-
ments which were made subsequent to the date upto which the
compensation for improvements had already been adjudged. It
was pursuant to this direction that a report was submitted
showing the value of improvements at more than a lakh of
rupees. On 23-2-1973, this Court granted special leave and
stayed the operation of the decree on condition that the
appellants deposit a sum of Rs.5,000 each year in the Trial
Court and permitting the respondents to withdraw the same on
furnishing security. On April 1, 1980, this Court passed an
order as follows:-
"Counsel on both sides, after arguments were
heard in substantial measure, agreed with us
that this was a case pre-eminently fit for
settlement. The question of law raised is a
ticklish one and the consequences will be ’all
or nothing’. The suggestion which appears to
be acceptable to counsel on both sides is one
of two alternatives, the option to choose
being left to the respondent, since he has won
in the High Court. The alternatives are:
(a) the appellant is to pay a sum of
Rs.50,000 to the respondent in addition to the
respondent being entitled to withdraw an
amount of Rs.30,000 plus Rs.8,000 and odd
lying in deposit to the credit of the suit. In
this event the appeal will stand allowed and
the property will be kept by the appellant as
owners of the property;
(b) alternatively, the respondent
will pay to the appellant a sum of Rs.50,000
and the appellant will be further entitled to
withdraw a sum of Rs.30,000 plus Rs.8,000 now
lying in deposit to the credit of the suit.
Thereupon the appellant will surrender posses-
sion forthwith to the respondent. The property
be kept in the same condition as it is now.
Post the matter on Tuesday i.e. 8-4-80."
When the matter came before us for hearing, we asked the
counsel whether a compromise was possible. We found that the
parties were not agreeable for a compromise. The appellants
have been in
709
possession of the properties ever since 1934 and have been
enjoying the income therefrom. It is true that they have
effected improvements to the property. That being so, we
feel that the appellants should not be left without any
compensation for the improvements effected. We make this
observation purely on an equitable basis. We direct the
respondents to pay to the appellants a sum of Rs.30,000 in
addition to the amount decreed. On such payment the appel-
lants shall deliver the property to the respondents. The
respondents will be at liberty to withdraw the amounts
deposited by the appellants in the Trial Court pursuant to
the orders of this Court if not already withdrawn.
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A.P.J. Appeal dis-
missed.
710