Case: J. Narayana Rao Vs. V.G. Basayarayappa &amp; Others

2. The plaintiff had purchased the property in suit from one Gangamma, Daughter of Gurushanthamma, under a registered sale3. The property was already mortgaged. The plaintiff accordingly brought a suit for redemption and possession. The appellant had previously purchased the property from the father of defendants 1 and 2 onHis contention was that he was a bona fide purchaser without notice of the mortgage and had effected improvements on the property.3. A preliminary decree for redemption and possession was passed by the Munsif onThe Munsiff found that the appellant was abona fidepurchaser and had in fact effected improvements on the property. He was entitled to compensation under S. 51, Transfer of Property Act. The preliminary decree accordingly directed the plaintiff to choose within two months either to pay to the appellant the cost of improvements and take possession of the property or to sell the property in suit to the appellant. The plaintiff elected onto pay the appellant the cost of improvement and take possession of the property. The plaintiff filed an application onfor the preparation of a final decree. A Commissioner was appointed by the Court to enquire into and report on the value of the improvement effected by the appellant. The Munsiff examined the Commissioner and other persons for the plaintiff and the appellants as witnesses. He came to the conclusion, on the evidence, that onAgainst the decision of the Munsiff the appellants appealed and his appeal was heard by the Additional Subordinate Judge, Bangalore. The Subordinate Judge, by his order dateset aside the decree of the Munsiff and remanded the case to him for a fresh finding on Issue No. 5, the relevant issue on the question of improvement effected by the appellant. Against the order of remand the plaintiff moved the High Court. The High Court set aside the order of the Subordinate Judge and directed him to hear the appeal and dispose of it according to law. The appeal was reheard by another subordinate Judge, who, while upholding the decision of the Munsiff that the appellant was entitled to compensation for cost of improvement disagreed with him as to the quantum of compensation to be paid to the appellant by the plaintiff. In his opinion the cost of improvement was onthe date of election by the plaintiff, Rs. 14,146. The difference between that sum and the sum fixed by the Munsif therefore would be Rs. 6160. The plaintiff and the appellant both being dissatisfied with this result appealed to the High Court. The High Court was of the opinion that the Munsiffs view on the evidence, was the correct one. It accordingly set aside the decision of the Subordinate Judge and restored that of the Munsiff. Against the decision of the High Court, the present appeal has been filed.

Reasoning: In any event the High Court erred in restoring the decision of the Munsiff. On the evidence, which was open to this Court to examine as the High Courts, Judgment was one of reversal, it would be clear that the newly constructed building, after demolishing the old one, was worth at the least Rs. 25000. The old building at the time of the appellants purchase was not worth more than Rs. 4,522. It had to be remembered that the appellant had purchased the property, including the land and the old building, for Rs. 8750. The land on which the old building stood had a value. In these circumstances the least amount of compunction payable to the appellant should be Rs. 21000 in roundour opinion S. 51, Transfer of Property Act merely lays down an equitable principle and enables a Court to determine the equities between the parties. A decree in the form in which it has been passed in this case, which was a suit for redemption and possession could have been passed. We regard the decision of the Privy Council in 57 Ind. App 305: (A. I. R. 1930 PC 297) (A) as an authority which supports our opinion.We think, however, having regard to the provisions of S. 51, Transfer of Property Act, that if the evidence enable a Court to do so. It should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of election as has been done in this case.Coming now to the evidence in the case, the appellant has created difficulties for himself in not producing his books of account,which would have enabled a Court to know exactly how much he had spent on improvement and thus assist it in arriving at the relevant conclusion in the case, namely, what was the saleable value of the improved property.SeeKidar Nath v. Mathu Mal,40 Cal 555 (B). Oral evidence, such as it is on the side of the appellant, is not very convincing. The only reliable evidence in the case is that of the Commissioner, P. W. 6, appointed by the court. He is a qualified person and has had to do valuation of buildings regularly in the course of his employment as an Executive Engineer of City Improvement Trust Board, Bangalore. A fair reading of his evidence does not disclose any substantial ground for disbelieving him. We proceed, therefore, to rest our decision on his evidence only and such other evidence as may support him. The Commissioner was examined in Court onHe had checked his measurements several times in January and February 1947. He has given the various rates prevailing in the various years and he has computed his valuation on that basis for the old building and the new construction.We hold, on the evidence, that the value of the improvement effected by the appellant amounts to Rs. 19,000/in round figures. That sum will be entered in the decree of the Court as the amount of compensation payable by the plaintiff to the appellant upon which the former would be entitled to possession. As the appellant has already been dispossessed, he would be entitled to restitution if the plaintiff fails to pay the balance due after deducting the amount of compensation already deposited in Court. We give the plaintiff time to pay the balance of the compensation on or before