IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 RSA.No. 604 of 2006() --------------------- AS.99/2004 of ADDL.DISTRICT COURT, MANJERI OS.233/1980 of MUNSIFF COURT, MANJERI .................... APPELLANT/ : (APPELLANTS/DEFENDANTS): ----------------------------------------- 1. ABOOBACKER BABU HAJI, S/O. AYAMU, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. ABDUL AZEEZ, S/O. AYAMU, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 3. KHALID, S/O. AYAMU, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 4. MAJEED, S/O. AYAMU, KONDOTTY AMSOM,KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 5. PATHUMMA, W/O. AYAMU, KONDOTTY AMSOM, KOLATHUR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH RESPONDENTS: (RESPONDENTS/PLAINTIFFS): -------------------------------------- 1. K.P. HYDRU, S/O.LATE PATHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 2. MOHAMMED KUTTY, S/O. LATE PATHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM. 3. KUNHEERUMMA, D/O. LATE PATHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 4. FATHIMA, D/O.LATE PATHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 5. MARIYUMMAKUTTY, D/O. LATE PATHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 6. BEEPATHUMMA, D/O. LATE PUTHUMMAKUTTY UMMA, KONDOTTY AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ R.S.A .NO.604 OF 2006 ------------------------------------------ Dated 11th March 2008 J U D G M E N T Defendants in O.S.233/1980 on the file of Munsiff court, Manjeri are the appellants. Respondents are plaintiffs. Respondents instituted the suit for redemption of Ext.A3 mortgage dated 11/12/1951. Under the said mortgage deed plaint schedule property was mortgaged in favour of Ayamu, father of appellants 1 to 4 and husband of fifth appellant for a mortgage money of Rs.300/-. Appellant resisted the suit claiming that they are entitled to the benefit of Kerala Land Reforms Act and they have effected improvements and are entitled to the value of improvements. Trial court as per judgment dated 28/9/1984 dismissed the suit which was challenged before Sub court Manjeri in A.S.9/1985. First appellate court set aside the decree of the trial court and granted a decree for redemption of the mortgage on deposit of Rs.300/-. Appellants were directed to pay mesne profit at the rate of Rs.180/- 2 per annum, after deposit of the mortgage amount till surrender. Appellant challenged the judgment before this court in S.A.362/1990. Contention raised by the appellant was that composite decree is not legal. This court, as per judgment dated 28/5/2002, set aside the judgment of the trial court and remanded the suit to the trial court for deciding the question of value of improvements after giving opportunity to the appellants to adduce evidence. Though appellants have persisted the claim for tenancy before this court in the second appeal, that was rejected. Judgment of this court was challenged before Apex Court in Civil Appeal No.982/2003. Apex court as per judgment dated 12/1/2004 dismissed the appeal. Trial court after remand on the basis of the evidence adduced including the report submitted by the Commissioner, as per judgment dated 10/6/2004 found that respondent/plaintiff deposited the mortgage amount on 14/2/1990 before Sub court, Manjeri and filed E.P.202/1990 and on deposit of the mortgage amount contractual relationship of mortgagor and mortgagee ceased to exist and appellants are not entitled to the value of improvements effected subsequent to the said deposit finding that appellant is not entitled to the value of improvements. 3 Appellants challenged judgment before District court, Manjeri in A.S.99/2004. Learned Additional District Judge on re-appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Second appeal was admitted formulating the following substantial questions of law. 1) When there is intrinsic evidence available in the case which reveals that the mortgagee has effected improvements in the property prior to 1984, has not the court below erred in holding that the age of the improvements is 10 years, relying on the commissioner’s report. 2) When the judgment and decree in compliance of which the deposit of mortgage amount made by the mortgagor was challenged in appeal by the mortgagee and was set aside in appeal, has not the court below gravely erred in holding that the mortgagees are not entitled to the value of improvements after the deposit of mortgage amount. 3. Learned counsel appearing for appellants and respondents were heard. Argument of learned counsel appearing for appellants is that though during the subsistence of earlier decree respondents deposited the 4 mortgage money on 14/2/1990, that decree was subsequently set aside by this court in S.A.362/1990 and relationship between mortgagor and mortgagee even if it ceased to operate because of the decree and deposit, relationship revived and appellants are entitled to the value of improvements effected subsequent to 14/2/1990 and courts below were not justified in rejecting the claim. Learned counsel also argued that after the claim for fixity of tenure was referred to Land Tribunal under Section 125(3) of Land Reforms Act, evidence adduced before the Land Tribunal establish that improvements were effected before 1990 and findings of the courts below that appellants are not entitled to the value of improvements as they are effected after February 1990 is not sustainable. 4. Learned counsel appearing for respondents argued that as rightly found by the courts below, improvements claimed by the appellants were not effected after February 1992 and the factual finding arrived by the courts below on that aspect cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. It was argued that though the decree granted by the first appellate court was set aside by this court in the second appeal, respondents have 5 deposited the mortgage amount on 14/2/1990 and as mortgage amount was deposited, the relationship of mortgagor and mortgagee will not subsist thereafter. It was argued that as provided under Section 63 A of the Transfer of Properties Act, where any such improvements were effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, the mortgagor is liable to pay cost thereof in addition to principal money with interest to the mortgagee and as the appellant did not call upon the respondents as provided under the proviso to Section 72 (b), appellants are not entitled to claim the value of said improvements and courts below rightly found that appellants are not entitled to the value of improvements. 5. Though learned counsel appearing for appellants based on the oral evidence tendered before the land Tribunal, when the suit was referred under Section 125(3) of Kerala Land Reforms Act, argued that improvements were effected prior to 1990, trial court and first appellate court on appreciating the evidence found that all the improvements noted by the Commissioner in Ext.C1 report were effected subsequent 6 to 1992. That finding entered into by the trial court is based on the evidence on record. First appellate court re-appreciated the evidence and confirmed that finding. As rightly pointed out by the learned counsel appearing for respondents, this court remanded the suit in the earlier second appeal granting opportunity to the appellants to prove that improvements were effected by him so as to claim their value. After remand he did not adduce any oral evidence to establish that any improvements as canvassed was effected. In such circumstance, I do not find any reason to interfere with the findings of the courts below that value of improvements effected were subsequent to February 1992. 6. Though learned counsel appearing for appellants argued that in view of the subsequent decision of this court in S.A.362/1990 setting aside decree for redemption granted in the first appeal deposit of the mortgage money, made on 14/2/1990 will not operate as cessation of the relationship of mortgagor and mortgagee. As rightly found by the courts below appellants are entitled to claim value of improvements only as provided under Section 63 A of Transfer of Property Act to claim value of improvements appellants have to satisfy the proviso to Section 72(b) 7 also. In order to claim the improvements effected for preservation of the mortgaged property from destruction or for forfeiture, mortgagee should have called upon the mortgagor to take timely steps to preserve the property and only if mortgagor failed to do so, appellants can effect improvements and claim it as provided under Section 63 A. Even according to the appellants, there is no evidence to prove appellants called upon the respondents as provided under the proviso to Section 72(b) so as to claim value of improvements as provided under Section 63 A. Courts below rightly held that appellants are not entitled to claim value of improvements. Appeal fails and can only be dismissed. 7. Learned counsel appearing for appellants then submitted that as appellants are doing business therein, they may be permitted to continue the possession till 31/8/2008. Learned counsel appearing for respondents submitted that appellants can be permitted to continue the possession subject to the condition that they shall to deposit the entire arrears upto date as well as deposit the mesne profit as found by the courts below, till 31/8/2008. 8. Appeal is dismissed. Appellants are directed 8 to surrender vacant possession on 31/8/2008 on the following conditions. Appellants shall file an affidavit before the executing court within two weeks from today unconditionally undertaking to surrender the vacant possession of the building on 31/8/2008 and also on deposit of the arrears of mesne profit as found in A.S.9/1985. M.SASIDHARAN NAMBIAR, JUDGE. uj. 9 ORDER ON I.A.NO. 1630/06 IN RSA 604/06 DISMISSED 11/3/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge.