Judgement

IMAM J. - This is an appeal from the decision of the High Court of Mysore on a Certificate granted by that Court to the appellant, who was defendant 3 in the suit.

2. The plaintiff had purchased the property in suit from one Gangamma, Daughter of Gurushanthamma, under a registered sale - deed dates 28-4-43. The property was already mortgaged. The plaintiff accordingly brought a suit for redemption and possession. The appellant had previously purchased the property from the father of defendants 1 and 2 on 31-8-42. His contention was that he was a bona fide purchaser without notice of the mortgage and had effected improvements on the property.

3. A preliminary decree for redemption and possession was passed by the Munsif on 30-6-45. The Munsiff found that the appellant was a bona fide purchaser and had in fact effected improvements on the property. He was entitled to compensation under S. 51, Transfer of Property Act. The preliminary decree accordingly directed the plaintiff to choose within two months either to pay to the appellant the cost of improvements and take possession of the property or to sell the property in suit to the appellant. The plaintiff elected on 25-7-45 to pay the appellant the cost of improvement and take possession of the property.

The plaintiff filed an application on 26-7-6-46 for the preparation of a final decree. A Commissioner was appointed by the Court to enquire into and report on the value of the improvement effected by the appellant. The Munsiff examined the Commissioner and other persons for the plaintiff and the appellants as witnesses. He came to the conclusion, on the evidence, that on 30-6-45 the cost of the old building which existed on the property in suit at the time of the appellants purchase was Rs. 10854 and the cost of the new construction made by the appellant was Rs. 18,840.

Deducting the cost of the old building he held that the cost of the improvement was Rs. 7,986 and directed the plaintiff to deposit that amount in court and take possession of the property. It may be mentioned here that this amount was in addition to the sum of Rs. 1000 mentioned in the preliminary decree payable by the plaintiff towards the mortgage money, interest, cost. repair and taxes. A final decree was accordingly made on 27-2-48.

4. Against the decision of the Munsiff the appellants appealed and his appeal was heard by the Additional Subordinate Judge, Bangalore. The Subordinate Judge, by his order date 9-9-48, set aside the decree of the Munsiff and remanded the case to him for a fresh finding on Issue No. 5, the relevant issue on the question of improvement effected by the appellant. Against the order of remand the plaintiff moved the High Court. The High Court set aside the order of the Subordinate Judge and directed him to hear the appeal and dispose of it according to law.

The appeal was reheard by another subordinate Judge, who, while upholding the decision of the Munsiff that the appellant was entitled to compensation for cost of improvement disagreed with him as to the quantum of compensation to be paid to the appellant by the plaintiff. In his opinion the cost of improvement was on 25-7-45, the date of election by the plaintiff, Rs. 14,146. The difference between that sum and the sum fixed by the Munsif therefore would be Rs. 6160. The plaintiff and the appellant both being dissatisfied with this result appealed to the High Court. The High Court was of the opinion that the Munsiff s view on the evidence, was the correct one. It accordingly set aside the decision of the Subordinate Judge and restored that of the Munsiff. Against the decision of the High Court, the present appeal has been filed.

5. That the appellant was a bona fide purchaser of the property in suit without notice of the mortgage has been consistently held by all the Courts below and we see no reason to take a contrary view. The Courts below applied the provisions of S. 51, Transfer of Property Act to determine the equities betw