MAKKY GOVINDAN Vs. VELAYUDHAN NAIR

JUDGEMENT

(1.) First defendant is the appellant and the only dispute relates to the quantum of the value of improvements in the property which he is entitled to claim. In allowing the plaintiff to recover possession of item No. 1 in the plaint schedule from the defendants the lower Court allowed the latter to remove the two buildings and also the non bearing trees in the property. No value of improvements was given to him. The learned judge confirmed this decree.

(2.) The claim of the first defendant before us is that he is a tenant under Act 29 of 1958 and is, therefore, entitled to claim value of improvements before the plaintiff is allowed recovery of possession of the property.

(3.) Plaint schedule property was the subject matter of Ex. P1 partition of the 1100, and it was given for enjoyment to one Velayudhan Nair. After his death the property was set apart to the tavazhi to whom A Schedule property is to devolve under the provisions of Ex. P1. Ex. P1 contained a provision restraining Velayudhan Nair from encumbering or alienating the plaint property. Velayudhan Nair executed Ex. D1 mortgage in the year 1116 in favour of Raman Madhavan who assigned the mortgage right in favour of the first defendant. O. S. No. 726 of 1121 was instituted to set aside Ex. D1 being in contravention of the terms of Ex. P1. Though the assignment in favour of the first defendant by Raman Madhavan was prior to O. S. No. 726 of 1121, Raman Madhavan alone was impleaded in that suit and the first defendant was not a party. It was subsequent to the institution of the suit, on 14-12-1121, that the first defendant was impleaded. Ex. P2 is the judgment whereby Ex. P1 was set aside and the decree prevented the first defendant from making further improvements upon the property. Ex. P2 is dated 31-5-1952. In A. S. No. 123 of 1954 filed by the plaintiff in O. S. No. 736 of 1121 the decree of the Trial Court fixing the value of improvements due was set aside for the reason that there was no decree for recovery of possession of the property. The suit giving rise to this appeal has been instituted subsequent to the death of Velayudhan Nair on 21-12-1961 by the plaintiff in whose favour the property was allotted under the Sakha Partition of 1962. The Trial Court found that the first defendant has effected improvements in the property and valued the same at Rs. 1050-80. The improvements were effected prior and subsequent to the date of Ex. P2. The question is whether Rs. 1050-80 can be claimed by the first defendant before the plaintiff is allowed to recover possession of the plaint property.