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2004 DIGILAW 643 (KER)

Salma Beevi v. Nalini

2004-12-17

K.R.UDAYABHANU

body2004
ORDER K.R. Udayabhanu, J. 1. The revision petitioner/respondent in E.P.No. 50/97 has sought for setting aside the order of the execution Court in declining his application for appointment of a Commissioner to reassess the value of improvements for the period subsequent to the date of valuation made at the time of the preliminary decree in the suit instituted for redemption of mortgage by the plaintiff-respondent. The revision petitioner has flayed the order of the execution court alleging manifest infirmities in the order on account of the evident misunderstanding of the legal position in the matter. The preliminary decree for redemption was passed on 19.2.1986 with a direction to deposit Rs. 3,555/- towards mortgage money and value of improvements. The decree holders deposited the same on 14.10.86 but the course of the litigation was prolonged, or protracted on account of the appeal filed by the defendants which ended in dismissal on 12.7.91. The final decree was passed on 10.7.92. On the failure of the defendant to vacate the property, the execution proceedings were initiated. It is in the above E.P., the E.A. was filed by the defendant for reassessing the value of improvements claiming that he is entitled for the same vide Section 5(3) of the Kerala Compensation for Tenants Improvements Act, 1958 (hereinafter to be mentioned as the Act). 2. The application was resisted by the plaintiff/respondent contending that the continuance of the possession of the defendants, ie., judgment debtors, after the date of deposit of mortgage money and value of improvements is wrongful and unlawful which disentitled them from claiming revaluation and reassessment of improvements. 3. The case of the revision petitioner is that as per Section 5(3) of the Act, it is mandatory to further assess the improvements for which compensation has already been adjudged and to vary the decree in accordance with such revaulation. The order of the court below that the mortgagee is entitled only for compensation of improvements effected during the contractual period of tenancy is absolutely and totally incorrect, it is contended. It is particularly mentioned that when the Commissioner visited the property, the rubber trees were only saplings and right now the same are yielding. 4. The order of the court below that the mortgagee is entitled only for compensation of improvements effected during the contractual period of tenancy is absolutely and totally incorrect, it is contended. It is particularly mentioned that when the Commissioner visited the property, the rubber trees were only saplings and right now the same are yielding. 4. The court below after considering the provisions of Sections 4 and 5 of the Act and also the decisions rendered in Paily v. Augusthy, 1967 KLT 189 (FB) and of the Supreme Court in Govindan v. Bhaskaran, 1992 (1) KLT 577, held that the petitioner is entitled for the benefits of Section 5(3) of the Act as his continuance of possession subsequent to the date of deposit of the value of improvements on 14.10.86 amounted to wrongful possession. The observation of the High Court in Paily's case (supra) that a person to whom nothing is due on the determination of his contractual tenancy, or the entire money due to whom as determined by the decree for eviction has been paid into the Court, should surrender possession without waiting to be evicted in execution; and that his possession thereafter is wrongful possession, deliberately so, and that he chooses to effect improvements while in such wrongful possession cannot injustice found any claim for compensation or any right to remain in possession to secure such a claim and that the Act does not provide for this, was relied on by the Court below. It has been pointed out by the Court that the above proposition has been reiterated and restated by the Supreme Court in Govindan's case (op.cit). It is the above reasoning of the Court that has been assailed by the revision petitioner as the result of misinterpretation of the provision of law as well as misunderstanding of the decisions of this Court and that of the Supreme Court. The revision petitioner has firmly relied on the decision of the Single Bench in Kalyani Amma v. Varghese, 1989 (2) KLT 408 , in a similar fact situation. In Kaliyani Amma's case (ibid), the compensation for value of improvements was deposited in Court on 13.4.81 and mortgage money prior to that. The execution court ordered delivery to be effected on 2.3.89. In Kaliyani Amma's case (ibid), the compensation for value of improvements was deposited in Court on 13.4.81 and mortgage money prior to that. The execution court ordered delivery to be effected on 2.3.89. Therein also the mortgagee/tenant contended that the improvements found in the property during 1979 when the Commissioner visited the property had grown by the time and that he is entitled to revaluation of his improvements as several years have elapsed. The execution Court refused to appoint a Commissioner at the instance of the judgment debtor for the purpose of revaluation of the improvements upholding the contention of the decree holder that he had already deposited the value of improvements. In revision, the High Court relying on the Full Bench decision in Paily's case (supra) and also the prior decision in Columbus v. Narayanan, 1954 KLT 518 , set aside the order of the execution court in spite of the conviction that the process of repeated reassessment of value of improvements and indefinite postponement of the order for delivery would amount to abuse of process of the Court. The Court expressed its helplessness and observed that it is difficult to compromise such a situation because of the statutory provisions. Although the Court admitted that the decree holder is put to very great difficulties, the execution court was directed to appoint a Commissioner as early as possible to reassess the value of improvements and on deposit of the same expeditiously order delivery of the property to the decree holder. 5. It is pertinent to note that Section 4 of the Act provides that every tenant shall, on eviction, be entitled to compensation for improvements and for which compensation had not already been paid, and that notwithstanding the determination of the tenancy, he shall be entitled to remain in possession until eviction in execution of a decree. It is also provided in Section 4(2) that a tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or mortgage. 6. It is also provided in Section 4(2) that a tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or mortgage. 6. Sections 4 and 5 together unfolds in no uncertain terms the statutory scheme meant to ensure the tenant the right to receive the value of improvements and his authority to remain in possession until eviction in the execution of decree despite the termination to the mortgage arrangement and his right to realise the amount of compensation for improvements till evicted in execution. As noted by the Full Bench in Paily's case (supra) while Section 4 confers substantive rights on the tenant, Section 5 provides the procedure by which these rights are to be secured by the Court in cases coming up before them. The effect of Sub-sections 1 and 2 of Section 4 is that a tenant to whom compensation is due under Sub-section (1) at the time of determination of the tenancy is entitled notwithstanding such determination to continue in possession as a tenant. The Full Bench in Paily's case, specifically held that what the second part of Sub-section (1) to Section 4 really means is that the tenant "to whom the compensation is so due" is entitled to remain in possession until eviction is ordered in execution of a decree or order of Court. 7. The Supreme Court in Govindan's case (op.cit) has clearly spelled out the purport of Sections 4 and 5 of the Kerala Compensation for Tenants Improvements Act that the Act only hedges the right to eviction and gives right to remain as a mortgagee till the payment for improvements are made or deposited so that the mortgagee/tenant is not driven to a separate suit. It is for this purpose that the mortgagee has been treated by a fiction of law to be a tenant. The fact situation in Paily's case, in fact, did not entitle the tenant for the value of improvements as at the time when the mortgage was redeemed and mortgage money deposited he had not effected any improvements. It is only after the deposit of the mortgage money that he effected an improvement in the property in the shape of a bund. It is only after the deposit of the mortgage money that he effected an improvement in the property in the shape of a bund. But not taking note of the subtle distinction envisaged under Section 4(1) in this regard in that case, the lower court had allowed the application of the tenant for the valuation of the subsequent improvement that he effected in the property, ie., the bund and the value of the same was assessed and deposited. That is why the Full Bench held that the subsequent possession of the tenant after the deposit of mortgage money was unlawful and that he is bound to pay mesne profits for the above period of possession, which the court held, was wrongful. But the Court in Paily's case examined and explained the nature, scope and combined effect of Sections 4 and 5. 8. The observations of the Supreme Court in Govindan's case has to be considered also in the light of the fact situation involved therein. The tenant therein was claiming the right of tenancy under Section 4A of the Kerala Land Reforms Act, 1964 by virtue of his right under Section 4 of the Compensation for Tenants Improvements Act, 1958. The Supreme Court particularly noted that his tenancy under the Kerala Tenants Improvements Act is only to enable him to recover the compensation for improvements determined under the Act and that it does not confer any other higher rights and that his possession as mortgagee under Section 4(1) of the Compensation for Tenants Improvements Act would not enable him to acquire the status of deemed tenant under Section 4A of the K.L.R. Act. The entitlement to remain in possession as a condition for payment is different from the entitlement of statutory tenancy under Section 4A of the K.L.R. Act. 9. It is clear from the above decisions that the mortgagee/tenant is entitled to remain in possession till compensation for improvements due is paid, notwithstanding the determination of the tenancy, until eviction in execution of the decree. If he had effected no improvements until the time of the determination of tenancy, he would not be entitled for compensation for improvements and continue in possession after the determination of the mortgage. If he had effected no improvements until the time of the determination of tenancy, he would not be entitled for compensation for improvements and continue in possession after the determination of the mortgage. In case he had effected improvements by the time of the determination of the mortgage, he would be entitled to remain in possession and hold as tenant subject to the terms of his lease or mortgage. Section 5(3) enables him to ask for revaluation of the improvements subsequent to the date up to which the compensation of improvements has been adjudged in the decree, and the same shall be determined by the Court executing the decree and the decree shall be varied in accordance with such revaluation. Section 5(3) read with Section 4(1) indicate that the revaluation of the improvements subsequent to the adjudication of the value of the same at the time of the redemption of mortgage is envisaged and that too only in the case where he was entitled for compensation for improvements that was in existence at the time of the termination of mortgage. The right of the tenant in this regard will be confined to the improvements effected by him prior to the date of the determination of the mortgage, ie., revaluation or reassessment, with reference to the condition of such improvements at the time of eviction. Hence I find that the revision petitioner/tenant in the instant case is entitled to the benefit of Section 4(1) read with Section 5(3) and the Court is bound to allow the application for commission to revalue the improvements, confining the same to the improvements that were in existence as noted by the previous Commissioner. It has to be noted that the matter got prolonged on account of the appeal filed over the order of preliminary decree for redemption dated 19.2.86. The provision for appeal being a statutory right, the exercise of the same cannot be said to be an abuse of the judicial process. The Court should take note that further delay should be avoided at any cost. 10. In the result, the C.R.P. is allowed. The order of the execution court is set aside. The execution court will appoint a Commission to reassess the value of improvements. The parties will appear before the Court below on 18th January, 2005.