Research › Browse › Judgment

Kerala High Court · body

1996 DIGILAW 486 (KER)

Janaki Thankamma v. Kamalakshy Sumangala

1996-11-15

K.A.MOHAMED SHAFI

body1996
ORDER K.A. Mohamed Shafi, J. 1. A final decree for redemption of the ottikuzhikanan under Ext. A1 dated 15.6.1960 and for recovery of possession of the property is passed by the lower court in OS No. 149/90. When the decree holder filed EP 415/93 for execution of the decree, the 1st judgment debtor filed EA No. 994/93 to appoint a commissioner to value the improvements in the property and claiming kudikidappu right in the property. The lower court dismissed the application by order dated 28.5.1994. That order is challenged in this revision petition. 2. The petitioner has contended that in the preliminary decree for redemption passed in the above suit on 29.7.1991 there was a direction to value the improvements in the plaint schedule property by a commissioner to be appointed in the final decree proceedings and even though she filed a petition for issue of a commission, in the final decree proceedings, she could not deposit the batta for the commission due to financial stringency and the lower court dismissed that application and subsequently passed final decree in the suit. According to her, as there is finding in the preliminary decree that she is entitled to value of improvements, the above petition for issue of a commission filed in the execution proceedings is perfectly valid, since she is entitled to continue in possession until the value of improvements is determined and paid to her under the provisions of the Compensation for Tenants Improvements Act, 1958. 3. But the contention of the respondents is that even though an opportunity to take out a commission to value the improvements during the final decree proceedings was provided in the preliminary decree the petitioner did not avail that opportunity since after filing the petition to issue a commission she failed to take out commission to value the improvements in the final decree proceedings as she did not deposit the commission batta and she cannot claim for the issue of a commission in the execution proceedings as there is no such direction in the final decree proceedings and the execution court cannot go behind the decree. 4. 4. In this case it is clear that the preliminary decree provided for the assessment of the value of improvements by a commission to be appointed in the final decree proceedings and in the final decree proceedings even though the revision petitioner applied for the issue of a commission, that petition was dismissed for non-payment of the commission batta due to her inability to raise the amount, according to the revision petitioner, and final decree was passed without awarding value of improvements. S.4 and 5 of the Compensation for Tenants Improvements Act, 1958 provides for payment of compensation to the tenant for the improvements which were made by him or his predecessor in interest and the tenant is entitled to be in possession till the mortgage amount along with the value of improvements is paid to him. Therefore, the contention that since the revision petitioner failed to deposit the batta for issue of a commission in the final decree proceedings as directed in the preliminary decree, she is not entitled to claim the value of improvements, is not sustainable since there is definite finding in the preliminary decree itself that she is entitled to value of improvements. 5. It is also pertinent to note that a reassessment of the value of improvements even after the value of improvements was estimated by issuing a commission in the suit for redemption is permissible in appropriate cases where re-assessment is necessary. It has been held so in the decision in Kalyani Amma v. Varghese ( 1989 (2) KLT 408 ). Therefore, the dismissal of the application for the issue of a commission to estimate the value of improvements claimed by the petitioner in this case is not sustainable. 6. The further question to be considered is whether the revision petitioner is entitled to claim kudikidappu right in the plaint schedule property. 7. The respondents have vehemently contended that in the suit itself the revision petitioner has claimed kudikidappu right and that claim was negatived by the lower court at the trial stage since the revision petitioner was in possession of 11 cents of land. The respondents also contended that in view of the fact that the claim of kudikidappu is held against the revision petitioner at the trial stage of the suit, the question of kudikidappu does not arise in this execution proceedings. The respondents also contended that in view of the fact that the claim of kudikidappu is held against the revision petitioner at the trial stage of the suit, the question of kudikidappu does not arise in this execution proceedings. In support of the contention the counsel for the respondents relies upon the decision in Kerala State H. W. Cooperative Society Ltd. v. Vedakke Madom Bhahmaswom ( 1996 (1) KLT 282 ) where in a Division Bench of this Court has observed as follows: "Legal principle laid down by the Division Bench in Sundaran's case is based on the interpretation of the word "arises' in S.125(3) of the Act. After noticing the well settled position that unless the question legally arises there is no obligation for the civil court to make a reference to the Land Tribunal, the Division Bench proceeded to consider whether such a question would legally arise in a case where a party has raised the claim without any bona fides and with the motive to procrastinate the proceedings. It was held thus: The amplitude of the expression 'arises' must be constricted to what genuinely arises in a case in view of the very unsatisfactory function of the present Land Tribunal system in Kerala. The courts have to give a useful and practical interpretation to lessen the abuse of the legal requirement envisaged in S.125(3) of the KLR Act. The civil court can consider whether the plea raised by the defendant or the respondent in the case is bona fide or genuine. If there is no reasonable prospect of the plea being upheld by a Land Tribunal, the Civil court can justifiably take the view that the question does not reasonably arise in the case. If the question does not reasonably arise in the case, the civil court need not make the reference under S.125(3) of the KLR Act. 8. I feel that the above decision is of no help to advance the contention raised by the respondents in this case that the petitioner is not entitled to claim Kudikidappu right in the execution proceedings in this case. In the above suit for redemption of the mortgage the question of kudikidappu arises only in the execution proceedings at the time of actual eviction when the mortgagee can put forward his or her claim based on Explanation.4 to S.2(25) of the Kerala Land Reforms Act. 9. In the above suit for redemption of the mortgage the question of kudikidappu arises only in the execution proceedings at the time of actual eviction when the mortgagee can put forward his or her claim based on Explanation.4 to S.2(25) of the Kerala Land Reforms Act. 9. In the decision in Ratnamma v. Kamalamma Pillai ( 1983 KLT 227 ) a single Judge of this Court has observed as follows: "The right which the petitioner claims is under Explanation.4. The right springs up only on redemption of the mortgage. As per the Explanation, the respondent mortgagee who resides in the mortgage property will be deemed to be kudikidapukari on the redemption of the mortgage with possession. In that case, a reference of the question of Kudikidappu to the Land Tribunal and its finding that the petitioner has no kudikidappu right pending the suit for redemption cannot stand in the way of the adjudication of the claim of kudikidappu which accrued to the respondent only by the decree for redemption passed later which snapped the ties of mortgagor and mortgagee. Under law, the respondent had yet to become a deemed kudikidappukari when the Land Tribunal gave the finding that she had no kudikidappu rights. The claim of kudikidappu now made in execution being one made on facts and circumstance not in existence at the time when the Land Tribunal gave the finding that the respondent was not a kudikidappukars cannot be barred by res judicata. So, in a case like this a reference is a must at this stage. If the person in possession satisfied the conditions insisted by the Explanation he will be entitled to purchase the hut and the extent of the land he is entitled under S.80A(3) of the Act." I am in respectful agreement with the above observations made by the learned single Judge. Therefore, the fact that at the trial stage it was held that the petitioner is not entitled to claim kudikidappu right is no bar against her from claiming kudikidappu right under Explanation.4 to S.2(25) of the Land Reforms Act since the claim of kudikidappu is accured to the revision petitioner only by the above decree for redemption extinguishing her right in the property as a mortgagee. Therefore, it is clear that the rejection of consideration of the claim for kudikidappu put forward by the revision petitioner in this case is also not sustainable. Therefore, it is clear that the rejection of consideration of the claim for kudikidappu put forward by the revision petitioner in this case is also not sustainable. 10. The lower court has to consider the question of kudikidappu raised by the revision petitioner in accordance with law and to pass appropriate orders. The lower court is also bound to issue a commission to value the improvements on redemption claimed by the revision petitioner. Hence the revision petition is allowed and the impugned order is set aside. The lower court is directed to issue a commission to estimate the value of improvements claimed by the revision petitioner and to consider the claim of kudikidappu made by the revision petitioner in accordance with law and pass appropriate orders.