http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: SHAMMA BHATT & ORS.

       Vs.

RESPONDENT: T. RAMAKRISHNA BHATT

DATE OF JUDGMENT27/03/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1348            1987 SCC  (2) 416  JT 1987 (2)     1        1987 SCALE  (1)636

ACT:     Kerala   Compensation  for  Tenants  Improvements   Act. 1958--Ss.     2(d)    and    5--Tenant--Compensation     for Improvement--When available.

HEADNOTE:     The appellants’ father had obtained sale of the property in  question during the minority of the  respondent  through his  widowed  mother, who was acting as  his  guardian.  The respondent, on attaining majority, filed a suit for declara- tion  that  the said sale-deed was invalid and  not  binding upon him and for recovery of possession of the property. The judgment  and decree of the trial Court dismissing the  suit was  affirmed by the Appellate Court. In Second Appeal,  the High  Court  set  aside the judgments of  the  Court  below, allowed the appeal and decreed the suit, directing  recovery of possession of properties on payment of Rs.4,700 being the sale consideration and a sum of Rs.4,164 being the compensa- tion  for improvement. The Special Leave Petition  filed  by the appellants was dismissed.     The  respondent filed execution, which was  resisted  by the  appellants on the ground that the properties could  not be  ordered to be delivered without payment of the value  of improvements  effected by them subsequent to the year  1952. They also filed an application for the issue of a commission to revalue the improvements, claiming that they had effected improvements  to the tune of Rs.gO,O00. The respondent  con- tested this application denying that the appellants had made any improvements and contended that the question of improve- ments  had been concluded by the judgment of the High  Court in  the  Second Appeal. The executing Court  dismissed  this petition. The District Judge allowed the appeal filed by the appellants  and set aside the order of the executing  Court. The High Court set aside the judgment of the District  Judge and  restored the order of the executing Court and  directed recovery of the property. The High Court observed that  "the sum of Rs.4,164.8.0 was directed to be paid not because  the respondents  were entitled to it, but because the  appellant agreed to pay it.’’ In the appeal to this Court, on behalf of the appellants  it was 701

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

contended: (1) that the judgment of the High Court was wrong and that the conclusion arrived at by the High Court was  as a  result of confusion regarding the pleadings in  the  case and  the  question of law involved; (2) that  at  the  trial stage an issue was struck as issue No. 8 regarding the value of  improvements  which  was adjudicated and  the  value  of improvements  was  adjudged; (3) that  the  appellants  were tenants within the meaning of s. 2(d) of the Kerala  Compen- sation  for Tenants Improvements Act, 1958 (Act 29 of  1958) and  that their claim for value of improvements was made  on the  strength  of s. 5 of the Act and, therefore,  they  are entitled  to  the value of improvements; and  (4)  that  the value of improvements has to be ascertained under the Act on the  execution  side and their claim cannot be  defeated  by flourishing the judgment of the High Court and the dismissal of the S.L.P. Dismissing the Appeal,     HELD: 1. The suit was filed in 1952. At that time  there was no enactment available for the defendant to claim  value of  improvements. Neither in the original written  statement nor  in the additional written statement  dated  15.11.1954, did the defendants claim the value of improvements under the Act.  Though at the execution stage a plea was raised  under s.  5 of Act 29 of 1958, but in the Judgment in  the  Second Appeal No. 464 of 1964 dated 27.11.1969, the Division  Bench decided that no claim for improvements was made either under s.  51 of the Transfer of Property Act or under s. 4 of  Act 29  of  1958. Moreover, the High Court also  found  that  no objection was taken by the appellants in the lower Appellate Court  or before the High Court to the finding that in  case of eviction the defendant would be entitled to Rs.4,164.8.0. as  compensation. This judgment was rendered when Act 29  of 1958  had already come into force. Against this  judgment  a special leave petition was filed and dismissed. Thus,  there is a concluded finding against the appellants that they were not entitled to anything more than the value of improvements decreed by the trial Court. [706H; 707A-C]     2. Section 5 comes into operation only when a  defendant against whom a suit for eviction is instituted establishes a claim  for compensation under the Act. The Judgment  of  the High Court rendered in 1969 has clearly held that the  value of improvement awarded was not under s. 4 of the Act but was an  amount  agreed by the plaintiff. The  appellants  cannot succeed and have not succeeded in satisfying this Court that they  ever made a claim for compensation under s. 4  of  the Act and succeeded in such a claim. Therefore, their  further claim  for getting the improvements revalued cannot  be  ac- cepted. [707E-G] 702     3.  The question whether a person who came into  posses- sion  of the properties of a minor could be  brought  within the  definition of ’tenant’ in s. 2(d)(iii) will have to  be considered in an appropriate case. [707G-H]     4.  Purely on an equitable basis, the  respondent  shall pay to the appellants a sum of Rs.30,000 in addition to  the amount decreed. On such payment the appellants shall deliver the  property to the respondent. The respondent shall be  at liberty to withdraw the amounts deposited by the  appellants in  the trial court pursuant to the order of this Court,  if not already withdrawn. [709B-C]

JUDGMENT:     CIVIL   APPELLATE   JURISDICTION:  Civil   Appeal    No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

383(N) of 1973.     From  the Judgment and Order dated 7.3.1972 of the  High Court of Kerala in S.A. No. 549 of 1971. G. Viswanath Iyer and Narayan Nettar for the Appellants.     T.S.  Krishnamurthy  Iyer, Vijay Kumar Verma  and  Madhu Moolchandani for the Respondent. The Judgment of the Court was delivered by     KHALID,  J. The appellants are the defendant in O.S.  55 of  1952 in the Sub-Court, Mangalore. Their father  had  ob- tained  sale  of the property involved in this appeal  by  a document dated 28-4-1939, executed by the widowed mother  of the  respondent-plaintiff who was a minor, aged  six  years, she  acting as his guardian. After he attained majority,  he filed  a suit for a declaration that the said sale deed  was invalid  and  was not binding upon him and for  recovery  of possession  thereof. The Trial Court dismissed the suit.  In appeal,  the appellate court confirmed the decree and  Judg- ment of the Trial Court. In second appeal, the High Court of Kerala,  by  its Judgment, dated 27-11-1969, set  aside  the Judgments  of the Courts below, allowed the appeal  and  de- creed  the suit. The decree directed recovery of  possession of  the properties on payment of the sum of  Rs.4,700  being the  sale  consideration  and a sum of  Rs.4,164  being  the compensation for improvements.     On  15-9-1970,  the  decree-holder,  respondent  herein, filed  R.E.P. 68/70 in the Sub-Court,  Kasargod,  depositing the amount due under the decree of the High Court and  pray- ing  for delivery of the properties from the  possession  of the Judgment debtors, the appel- 703 lants.  Execution  was  resisted by the  appellants  on  the ground that no delivery could be ordered without payment  of the value of improvements effected by them subsequent to the year  1952. They also filed R.E.A. No. 146/70 for the  issue of a commission to re-value the improvements, claiming  that they had effected improvements to the tune of Rs.80,000. The respondent  contested  this  application,  denied  that  the appellants had made any improvements and contended that  the question of improvements had been concluded by the  Judgment of the High Court in the second appeal. The executing  Court dismissed this petition. Aggrieved by this order, the appel- lants filed an appeal before the District Judge,  Tellicher- ry, who allowed the appeal by his Judgment dated 12th April, 1971  and  set aside the order of the executing  Court.  The matter  was  taken  to the High Court by  way  of  Execution Second Appeal. A Division Bench of the Kerala High Court, on a  reference  from  a learned Single Judge,  set  aside  the Judgment  of the District Judge by its Judgment  dated  7-3- 1972  and  restored the order of the Subordinate  Judge  and directed recovery of the property. The appellants, moved the High Court for grant of certificate of fitness, which prayer was  declined and hence have filed this appeal,  by  special leave.     The suit was filed by the plaintiff within three  years- ’of  his attaining majority alleging that the assignee  took advantage  of  the ignorance and helpless condition  of  the plaintiff’s mother, who was a young widow and that there was neither  legal  necessity nor pressure from the  estate  for effecting the sale. He averred in the plaint that there  was a partition decree in his favour in which he had been allot- ted these properties with outstanding amounting to  Rs.5,300 and  mesne  profits  to the extent of  Rs.1,549  which  were sufficient  to  discharge the debts due by the  estate.  The entire  immovable  properties belonging  to  the  plaintiff, including the family residential house, were alienated.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

High Court in second appeal on the trial side held that  the alienation  was not something which a man of  ordinary  pru- dence would have effected, had the properties been owned  by him  and  thus  held it not binding on  the  plaintiff.  The learned  Judges  of the Division Bench then  considered  the question  of  the  defendant’s right  for  compensation  for improvements,  if any, effected. This claim was  denied.  In the  written statement filed by the defendant, as  noted  by the  High Court, all that was claimed was that  improvements had  been effected to the tune of Rs.4,000. But no  specific claim  was made for compensation in the event  of  eviction. The  High Court also noted that the averment  regarding  im- provements  was itself made in the context of  denying  that the  property  would have fetched Rs.11,000 at the  time  of sale. In the 704 additional written statement filed by the defendant a  claim was  made  that improvements to the value of  Rs.11,168  had been effected after the sale date and that under any circum- stances,  the defendants were entitled to just and  adequate compensation for them. The Division Bench adverting to  this aspect  of  the case held against the  appellants  with  the following observation:               "The  basis of the claim has not  been  stated               anywhere,  and no averments of fact  necessary               for  attracting section 51 of the Transfer  of               Property  Act or Section 4 of the Kerala  Com-               pensation for Tenants’ Improvements Act, 1958,               have been made. Hence, the claim for value  of               improvements would appear to be unsustainable.               However,  no objection has been taken  by  the               appellant  in the lower appellate court or  in               this  Court to the finding of the trial  court               that in case of eviction, the defendants would               be  entitled to Rs.4,164.8.0  as  compensation               for improvements." It  was with these observations regarding improvements  that the appeal was allowed and the suit for recovery decreed.     When the matter reached the High Court in second  appeal on the execution side the matter was heard by another  Divi- sion  Bench  of the Kerala High Court.  The  Division  Bench relied upon the following observation in the Judgment of the Division  Bench on the original side and declined relief  of value of improvements to the appellants, with the  following observation:     The  Division Bench considered the question of value  of improvements in paragraph 9 of the Judgments and Unnikrishna Kurup,  J.  who spoke for the Division Bench has  stated  in unequivocal terms:               "Hence,  the claim for value  of  improvements               would appear to be unsustainable. However,  no               objection  has been taken by the appellant  in               the lower appellate court or in this Court  to               the finding of the trial court that in case of               eviction, the defendants would be entitled  to               Rs.4,164,8.0.  as  compensation  for  improve-               ments." We  may  in passing on also observe that the  appellant  had filed  an  application for special leave against  the  first Judgment in second appeal. which was dismissed. The claim of value of improvements was 705 rejected  by the Division Bench with the following  observa- tion:      "The  sum of Rs.4,164.8.0 was directed to be  paid,  we

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

repeat, not because the respondents were entitled to it, but because the appellant agreed to pay it."     It is with these materials that the present claim of the appellants  for value of improvements has to be  considered. We  may indicate at this stage itself that the  Commissioner appointed at the instance of this Court, assessed the  value of  improvements  at  Rs.1,00,031.40, by  his  report  dated 12-10-1972.  The  learned counsel for the appellant  made  a forceful plea that the Judgment of the High Court was  wrong and that the conclusion arrived at by the High Court was  as a result of a confusion regarding the pleadings in the  case and  the  question of law involved. He stated  that  at  the trial stage an issue was struck as issue No. 8 regarding the value of improvements. This question was adjudicated and the value  of improvements was adjudged after due  consideration of this issue. His further submission is that the appellants were  tenants  within  the meaning of Section  2(d)  of  the Kerala Compensation for Tenants Improvements Act, 1958  (Act 29  of 1958), and that the claim for value  of  improvements was made on the strength of Section 5 of the Act. He  relied upon a Division Bench ruling in Veerasikku Gounder v.  Kuri- an, 1 in support of his contention that the appellants  were tenants and were entitled to the value of improvements.     The  property is situated in the old South  Kerala  Dis- trict  which formed part of the then Madras  Presidency.  At the time the suit was filed, there was no enactment in force in  that  area, enabling persons in possession  of  property belonging  to another to claim value improvements in a  suit for recovery of possession. The area, where the property  in dispute  is  situated, became part of Kerala when  the  said State  was  formed. When Act 29 of 1958 was  enacted,  there were two enactments in existence, applicable to the  Travan- core  Cochin and the Malbar Area, regarding the  claims  for improvements for tenants in possession. They are the Travan- core Cochin Compensation for Tenants Improvements Act,  1956 and  the Malbar Compensation for Tenants  Improvements  Act, 1899. Both these Acts were repealed when Act 29 of 1958  was enacted.  Section 2(d) of the new Act defines ’tenant’,  the relevant portion of which reads as follows:               "2(d) ’tenant’ with its grammatical variations               and cognate               706               expression includes--               (i)  ..............               (ii)  ........               (iii)  a person who comes into  possession  of               land  belonging  to another person  and  makes               improvements  thereon in the bona fide  belief               that    he   is   entitled   to   make    such               improvements." The appellants contention is that they satisfy this  defini- tion  and that, therefore, they are entitled to the  benefit of this Act. Section 4 deals with the entitlement to compen- sation  for  improvements for tenants for  the  improvements made by them, or their predecessor-in-interest on  eviction. Section 5 states that when in a suit for eviction instituted against the tenant the plaintiff succeeds and the  defendant establishes a claim for compensation due under Section 4 for improvements,  the Court shall ascertain the amount of  com- pensation and shall pass a decree for payment of the  amount so  found due to the tenants. Subsection 3 of  this  section gives  an  additional  right to such tenants  for  value  of improvements  effected  after the decree by  evaluation.  We read the section for a correct understanding of the same:               "5(3) The amount of compensation for  improve-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

             ments  made subsequent to the date upto  which               compensation  for  improvements has  been  ad-               judged  in the decree and the re-valuation  of               an  improvement,  for which  compensation  has               been  so adjudged, when and in so far as  such               revaluation may be necessary when reference to               the condition of such improvements at the time               of eviction as well as any sum of money accru-               ing  due  to the plaintiff subsequent  to  the               said  date for rent, or otherwise, in  respect               of  the tenancy, shall be determined by  order               of  the  court executing the  decree  and  the               decree shall be varied in accordance with such               order." It  is  basing on this Section that the claim  is  made  for value of improvements by the appellants.     The  suit  was filed in 1952. At the time there  was  no enactment  available  for the defendant to  claim  value  of improvements. Neither in the original written statement  nor in the additional written statement 707 dated  15-11-1954,  did the defendants claim  the  value  of improvements under the Act. It is true that at the execution stage  a plea was raised under Section 5 of Act 29 of  1958. But it is necessary to remember that in the Judgment in  the Second Appeal No. 464 of 1964, the Division Bench decided on 27-11-1969, that no claim for .improvements was made  either under  Section 51 of the Transfer of Property Act  or  under Section  4 of Act 29 of 1958. Moreover, the High Court  also found  that no objection was taken by the appellants in  the lower appellate court or before the High Court to the  find- ing that in case of eviction the defendant would be entitled to Rs.4,164.8.0 as compensation. This Judgment was  rendered when  Act  29 of 1958 had already come into  force.  Against this Judgment this Court was moved by filing a special leave petition and that was dismissed. Thus, there is a  concluded finding  against the appellants that they were not  entitled to  anything more than the value of improvements decreed  by the trial Court.     In  the  Judgment under appeal also the High  Court  has reiterated the fact that the appellants were being paid  the amount mentioned above not because they were entitled to it, but  because  the appellant agreed to pay  it.  The  learned counsel for the appellants Shri G. Vishwanatha Iyer tries to over-come the finality of this Judgment with the  contention that  the value of improvements has to be ascertained  under the  Act on the execution side and his claim cannot  be  de- feated by flourishing the Judgment of the High Court and the dismissal  of the S.L.P. We find it difficult to accept  the appellant’s case. Section 5 comes into operation only when a defendant  against  whom a suit for eviction  is  instituted establishes  a  claim for compensation under  the  Act.  The Judgment of the High Court rendered in 1969 has clearly held that the value of improvement awarded was not under  Section 4 of the Act but was an amount agreed by the plaintiff.  The appellants cannot succeed and have not succeeded in satisfy- ing  us that they ever made a claim for  compensation  under Section  4 of the Act and succeeded in such a claim.  There- fore their further claim for getting the improvements reval- ued cannot be accepted.     We do not wish to pronounce upon the question whether  a person  like the appellants who came into possession of  the properties of a minor through his young widowed mother could be  brought  within  the definition  of  tenant  in  Section 2(d)(iii).  This  matter will have to be  considered  in  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

appropriate case and the correctness of the decision of  the Kerala  High Court brought to our notice by the  appellant’s counsel  tested then. The appeal has only, therefore, to  be dismissed. 708     However,  we feel that some equity has to be worked  out in  this  case. This Court issued notice in  the  S.L.P.  on 20-6-1972.  On  1-9-1972  stay of operation  of  decree  was granted, and an opportunity was given to enable the  parties to come to a compromise. On 18-9-1972, this Court directed a Commissioner to be appointed to assess the value of improve- ments which were made subsequent to the date upto which  the compensation for improvements had already been adjudged.  It was  pursuant to this direction that a report was  submitted showing  the  value of improvements at more than a  lakh  of rupees.  On 23-2-1973, this Court granted special leave  and stayed  the  operation of the decree on condition  that  the appellants deposit a sum of Rs.5,000 each year in the  Trial Court and permitting the respondents to withdraw the same on furnishing security. On April 1, 1980, this Court passed  an order as follows:-               "Counsel  on both sides, after arguments  were               heard  in substantial measure, agreed with  us               that  this  was a case pre-eminently  fit  for               settlement.  The question of law raised  is  a               ticklish one and the consequences will be ’all               or  nothing’. The suggestion which appears  to               be acceptable to counsel on both sides is  one               of  two  alternatives, the  option  to  choose               being left to the respondent, since he has won               in the High Court. The alternatives are:                         (a) the appellant is to pay a sum of               Rs.50,000 to the respondent in addition to the               respondent  being  entitled  to  withdraw   an               amount  of  Rs.30,000 plus  Rs.8,000  and  odd               lying in deposit to the credit of the suit. In               this  event the appeal will stand allowed  and               the property will be kept by the appellant  as               owners of the property;                         (b)  alternatively,  the  respondent               will  pay to the appellant a sum of  Rs.50,000               and the appellant will be further entitled  to               withdraw a sum of Rs.30,000 plus Rs.8,000  now               lying  in deposit to the credit of  the  suit.               Thereupon the appellant will surrender posses-               sion forthwith to the respondent. The property               be  kept in the same condition as it  is  now.               Post the matter on Tuesday i.e. 8-4-80."     When the matter came before us for hearing, we asked the counsel whether a compromise was possible. We found that the parties were not agreeable for a compromise. The  appellants have been in 709 possession  of the properties ever since 1934 and have  been enjoying  the  income therefrom. It is true that  they  have effected  improvements  to the property. That being  so,  we feel  that  the appellants should not be  left  without  any compensation  for  the improvements effected. We  make  this observation  purely  on an equitable basis.  We  direct  the respondents  to pay to the appellants a sum of Rs.30,000  in addition  to the amount decreed. On such payment the  appel- lants  shall  deliver the property to the  respondents.  The respondents  will  be  at liberty to  withdraw  the  amounts deposited  by the appellants in the Trial Court pursuant  to the orders of this Court if not already withdrawn.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

A.P.J.                                         Appeal   dis- missed. 710