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2009 Supreme(SC) 1206
2009(5) Supreme 546
SUPREME COURT OF INDIA
(From Kerala High Court)
Dr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.
Devaki Antharjanam — Appellant
versus
Sreedharan Namboodiri & Anr. — Respondents
Civil Appeal No. 3206 of 2006
Decided on : 07-07-2009
For the Appellant(s) :Ms. T. Anamika, B.V. Deepak (for M/s. T.T.K. Deepak & Co.), Advocates.
For the Respondent(s):Subramonium Prasad, Advocates.
IMPORTANT POINT
Improvements made after the dispute arose cannot be said to be in bona fide belief.
Headnote:(a) Kerala Compensation for Tenants Improvements Act, 1959 – Section 2(d) –Improvements made after the disputes between parties commenced may not be in bona fide belief – Improvements made after the dispute arose cannot be covered u/s 2(d). (Para 19)
(2004) 3 SCC 277 – Relied upon.
(b) Kerala Compensation for Tenants Improvements Act, 1959 – Section 5(3) – A litigant cannot resile from an undertaking given to the Court. (Para 24)
(c) Code of Civil Procedure, 1908 – Section 115 – High Court cannot interfere with a valid and justified finding of the court below. (Para 26)
Facts of the case :
1. The appellant filed a suit seeking for a decree for recovery of possession of immovable property including the building with a further prayer for grant of a decree for mesne profit.
2. The respondents/judgment debtors contested the said suit and claimed value of improvements made by them which they themselves assessed at Rs. 7 lakhs and for recovery of the same.
3. The suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs. 1000 per year from the defendant No.1 /respondent No. 1 from the date of institution of the suit till delivery of possession. It was also directed in the said suit that respondent No. 1 would be entitled to get value of improvements of Rs. 1,35,000/- from the plaintiff/appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No. 1 would also pay the cost of the suit to the plaintiff/appellant.
4. The aforesaid decree was confirmed by all appellate courts up to the High Court.
5. In a revision petition, the High Court allowed additional compensation to the respondent and remitted the matter for revaluation.
Finding of the Court :
Impugned judgment is erroneous and cannot be sustained.
Result : Appeal allowed.
JUDGMENT
Dr. Mukundakam Sharma, J.—
1. This appeal is directed against the judgment and order dated 25.5.2005 passed by the High Court of Kerala whereby the High Court while allowing the Civil Revision filed by the respondent herein and setting aside the order passed by the Execution Court directed that the Execution Court should proceed to fix the value of improvements due to the respondent in accordance with Section 5(3) of the Kerala Compensation for Tenants Improvements Act, 1959 (for short “the Act”).
2. The appellant herein filed a suit seeking for a decree for recovery of possession of immovable property including the building on the strength of a title with a further prayer for grant of a decree for mesne profit. The suit was instituted by the appellant in her capacity as the landlady of the said property in the year 1987. The respondents/judgment debtors contested the said suit by filing a written statement. In the written statement filed by the respondents, they claimed value of improvements made by them which they themselves assessed at Rs. 7 lakhs and for recovery of the same.
3. By judgment and decree passed on 31.5.1991, the suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs. 1000 per year from the defendant No.1/respondent No. 1 from the date of institution of the suit till delivery of possession. It was also directed in the said suit that respondent No. 1 would be entitled to get value of improvements of Rs. 1,35,000/- from the plaintiff/appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No. 1 would also pay the cost of the suit to the plaintiff/appellant.
4. The aforesaid decree was challenged by the respondents herein before the first appellate court which dismissed the said appeal.
5. Feeling aggrieved, the respondent filed an appeal before the High Court wherein also the value of improvements as fixed by the trial court and upheld by the first appellate court was challenged.
6. The High Court, however, dismissed the said appeal and thereby upheld and confirmed the decree passed by the trial court as also confirmed by the first appellate court. Consequent result is that the claim of the independent title and also the claim of title by way of adverse possession set up by the respondents were rejected whereas all the courts including the High Court confirmed only to the extent that the respondents were entitled to value of improvements being Rs. 1,30,000/- for the building and Rs. 5,500/- for the motor pump set and pump house, aggregating to a total of Rs. 1,35,500/- only.
7. The aforesaid valuation was made by the trial court by its judgment and decree dated 31.5.1991 on the basis of Exts. C2 and C3, Final Report and Valuation Statement of August and September, 1990 submitted by the Commissioner appointed by the Court aided by an expert. The said amount also came to be paid by the appellants herein.
8. After the decree was granted by the trial court under judgment and order dated 31.5.1991 and since despite the decree and also payment of the compensation as determined and assessed by the courts including the High Court, the respondents did not vacate the suit premises, the appellants were compelled to file an execution case bearing Execution Petition No. 331 of 1999 seeking for eviction of the respondents from the suit premises. In the said execution petition, the respondents took up a plea that in terms of the provisions of Section 5(3) of the Act, the execution court is required to conduct a supplementary enquiry to determine (i) additional compensation for improvement made to the building after the date of the decree on the ground that the Act permits to include amount of compensation for the improvements made even subsequent to the passing of the decree and (ii) on revaluation of t
