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2013 DIGILAW 1138 (BOM)

Dhondiba Namdeorao Bhosale v. Syed Ismail Syed Asadulla

2013-06-24

A.B.CHAUDHARI

body2013
Judgment : 1. This appeal is directed against the judgment and order dated 12.8.1987 in Regular Civil Appeal No. 13/1982 decided by 2nd Additional District Judge, Latur, by which, the lower appellate court reversed the judgment and decree of the trial court. 2. In support of the appeal, Mr. S.S.Bora, learned Counsel for the appellant, submitted that the Second Appeal is being pressed only in so far as the part of the appellate decree in Para No.28 of the judgment, setting aside the decree of the trial court in respect of costs of improvement. Mr. Bora further submitted that no other points are being raised by him in this appeal except the above. 3. According to Mr.Bora, the lower Appellate Court placed reliance on Section 51 of The Transfer of Property Act,1882 to come to the conclusion that the Civil Court cannot decide the issue about costs of improvement and the issue be always left to be decided by the Executing Court when the execution proceedings are filed. The only reason, given by the lower appellate court for the said finding, is that the valuation of improvement can be estimated at the time of eviction and, therefore, according to lower appellate court, it was not necessary to ascertain valuation of improvement. Assailing this finding on the question of law, Mr.Bora argued that the said part of Para 28 of the lower appellate court’s judgment is illegal and will have to be set aside. 4. None appeared for the respondents. 5. Having heard the learned Counsel for the appellant and having gone through the impugned judgments and orders passed by the courts below, I frame following substantial question of law: “Whether Section 51 of the Transfer of Property Act prohibits the civil court from ascertaining the valuation of improvement costs and then passing a decree accordingly and whether the said exercise of assessment should be left over to the executing court?” My answer is No. REASONS: 6. Section 51 of the Transfer of Property Act reads thus: “51. Improvements made by bona fide holders under defective titles. Section 51 of the Transfer of Property Act reads thus: “51. Improvements made by bona fide holders under defective titles. – When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them." 7. Perusal of the aforesaid section makes it clear that the aforesaid provision, to my mind, does not anywhere prohibit adjudication of cost of improvement by a civil court, nor does it provide for such adjudication being made by the Executing Court at the time of eviction. As a matter of fact, it is a civil court, which decides all the issues between the parties, including the issue of damages etc. and such exercise would better be done by the civil court by framing an issue for levy of damages. According to me, after all, assessment of costs for improvement is in the nature of damages to be awarded to the party. In normal civil proceedings, assessment of damages is to be made by the civil court only since the issue of damages is broadly connected with the other substantive issue to be decided by the civil court. At any rate, according to me, Section 51 of the Transfer of Property Act does not prohibit decision or assessment of the costs of improvement by regular civil court. It may be that even executing court make an assessment, but then the adjudicatory process, even on the assessment, deserves not to be delayed by leaving the job to the executing Court. The ultimate object is to avoid multifarious proceedings and to curtail the length of litigation. It may be that even executing court make an assessment, but then the adjudicatory process, even on the assessment, deserves not to be delayed by leaving the job to the executing Court. The ultimate object is to avoid multifarious proceedings and to curtail the length of litigation. "interestrepublicae ut sit finislitum" that is to say; it concerns the state that there should be an end to law suits. In the light of above, I am inclined to answer the question in the affirmative. In the result, I make the following order. ORDER (i) The Second Appeal No.283/1987 is partly allowed; (ii) The Judgment and order dated 12th August, 1987 in Regular Civil Appeal No.13/198 passed by the 2nd Additional District Judge, Latur, with reference to observation in Para 28 of the judgment only as to the order and decree about costs of improvement, is set aside by restoring the decree of the trial court for cost of improvements; (iii) Rest of the lower appellate court decree is confirmed.