Devaki Antharjanam vs Sreedharan Namboodiri & Anr

2. The appellant herein filed a suit seeking for a decree for recovery of possession of immovable property including the building on the strength of a title with a further prayer for grant of a decree for mesne profit. The suit was instituted by the appellant in her capacity as the landlady of the said property in the year 1987. The respondents/judgment debtors contested the said suit by filing a written statement. In the written statement filed by the respondents, they claimed value of improvements made by them which they themselves assessed at Rs. 7 lakhs and for recovery of the same.

3. By judgment and decree passed on 31.5.1991, the suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs. 1000 per year from the defendant No.1 /respondent No. 1 from the date of institution of the suit till delivery of possession. It was also directed in the said suit that respondent No. 1 would be entitled to get value of improvements of Rs. 1,35,000/- from the plaintiff/appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No. 1 would also pay the cost of the suit to the plaintiff/appellant.

4. The aforesaid decree was challenged by the respondents herein before the first appellate court which dismissed the said appeal.

7. The aforesaid valuation was made by the trial court by its judgment and decree dated 31.5.1991 on the basis of Exts. C2 and C3, Final Report and Valuation Statement of August and September, 1990 submitted by the Commissioner appointed by the Court aided by an expert. The said amount also came to be paid by the appellants herein.

11. Needless to point out that the aforesaid assessment of Rs. 3,12,000/- was made without giving any depreciation of the building. Be that as it may, it transpires from the records that the appellants paid the said amount also in terms of the order passed by the Executing Court that is to say the appellants deposited the amount of Rs. 3,12,000/- over and above the amount of Rs. 1,35,500/-.

20. In view of the aforesaid settled legal position, we are required to consider whether the respondent could make a claim for enhanced compensation for improvements allegedly made by him.

23. It is also pointed out that now the respondents are seeking for payment of compensation for the aforesaid improvements also made despite an undertaking given by them before the High Court that they would not claim any value of the said room and the improvements made in the first floor of the building. Since the aforesaid undertaking was placed on record by the respondents, any constructions made after the aforesaid undertaking given by the respondents cannot be said to be improvements made in the bonafide belief that they are entitled to make some improvements.

26. The said findings and conclusions arrived at by the trial court are found to be valid and justified. The High Court acted without jurisdiction in interfering with the aforesaid order in the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure.

27. We do not find any reason to linger on the matter any further by remanding the matter back to the High Court as we find that the findings recorded by the executing court are legal and valid. In our considered opinion, the said findings do not call for any interference and the High Court 15 committed a manifest error of law and also exceeded its jurisdiction by interfering with the said findings. We, therefore, allow this appeal and set aside the order passed by the High Court and restore the order of the trial court. The trial court would now take steps for execution of the decree in accordance with law.

28. The appeal is allowed with costs.

................................J. [Dr. Mukundakam Sharma] ..................................J. [Dr. B.S. Chauhan] New Delhi, July 7, 2009 16