Civil Appeal No 383N of 1973
From the Judgment and Order dated 731972 of the High Court of Kerala in SA No 549 of 1971
G Viswanath Iyer and Narayan Nettar for the Appellants
TS 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 OS 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 Rs4700 being the sale consideration and a sum of Rs4164 being the compensation for improvements
On 15 9 1970 the decree holder respondent herein filed REP 6870 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 REA No 14670 for the issue of a commission to re value the improvements claiming that they had effected improvements to the tune of Rs80000
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 Rs5300 and mesne profits to the extent of Rs1549 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 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 Rs4000
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 Rs11000 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 Rs11168 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 Rs416480 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 Rs416480
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 Rs416480 was directed to be paid we 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 Rs10003140 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 2d 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 vs 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 2d of the new Act defines tenant  the relevant portion of which reads as follows 2d 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 53 The amount of compensation for improve 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 Rs416480 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 SLP
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 2diii
This matter will have to be considered in an 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 SLP 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 Rs5000 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 Rs50000 to the respondent in addition to the respondent being entitled to withdraw an amount of Rs30000 plus Rs8000 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 Rs50000 and the appellant will be further entitled to withdraw a sum of Rs30000 plus Rs8000 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 ie 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 Rs30000 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
APJ Appeal dis missed


Summary:
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 Rs4700 being the sale consideration and a sum of Rs4164 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 RsgOO00
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 Rs416480 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 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 section 2d 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 section 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 SLP 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 15111954 did the defendants claim the value of improvements under the Act
Though at the execution stage a plea was raised under section 5 of Act 29 of 1958 but in the Judgment in the Second Appeal No 464 of 1964 dated 27111969 the Division Bench decided 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 finding that in case of eviction the defendant would be entitled to Rs416480
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 section 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 section 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 section 2diii 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 Rs30000 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