KOCHUKUNJU Vs. KARAMBI

JUDGEMENT

(1.) This revision filed by the defendant in O. S. No. 408 of 1978 on the file of the Munsiff Court, Mavelikkara is directed against an order passed in execution in E. A. No. 252 of 1982 in E. P. No. 151 of 1982 refusing the prayer for issue of a commission for re-assessment of value of improvements mentioned in the report of the Commissioner Ext. C-3 as items 1, 3 and 4.

(2.) The suit was for redemption of a mortgage in respect of 25 cents of land executed by the defendant in favour of the plaintiff and during the trial a commission was issued to assess the value of improvements claimed to have been effected by the defendant in the suit property. The Advocate Commissioner after inspecting the suit property submitted a mahazar Ext. C-3. The suit was decreed and accepting Ext. C-3, the Trial Court awarded the value of improvements claimed to have been effected by the defendant in the suit property. Item No. 1 in Ext. C-3 is four 10 year old coconut trees; item No.3 is one 5 year old coconut tree and item No. 4 is three 1 year old coconut plants. The Ext. C-3 mahazar is dated 13-12-1980 and the decree was passed on 18-11-1981. The E. A. No. 252 of 1982 was filed by the revision petitioner before the court below on 20-10-1982 praying for the issue of a commission to re-assess the value of improvements. It was on the ground that there was change of conditions in respect of improvements mentioned in the petition that the said E. A. was filed for revaluation of the improvements. This application was filed under sub-s.(3) of S.5 of the Kerala Compensation for Tenants Improvements Act, 1958 and this was strongly opposed by the decree holder on the ground that this section applies only to improvements, if any, effected after the passing of the decree; and that the petitioner is not entitled to have the value of improvements re-assessed on the ground that there was change of conditions. The court below referred to some of the decisions of this Court reported in M.S. Kadambalithaya v. Beepathumma ( 1959 KLT 1089 ), Cheriyan Mathai v. Narayanan Pillai ( 1960 KLT 1192 ) (FB.) and Padmanbhan Nair v. Raghavan Nair ( 1964 KLT 1019 ) and held that under S.5(3) of the above said Act only the value of the improvements effected after the passing of the decree can be claimed; and that there was no change in the nature and quality of improvements with regard to items 1, 3 and 4 in Ext.C-3 mahazar.

(3.) It is clear from the wording of sub-s. (3) of S.5 of the Compensation for Tenants Improvements Act, 1958 (Kerala) (Act 29 of 1958), for short the 'Act', that under this sub-section a person entitled to the benefit of the 'Act' is not only entitled to claim the amount of compensation for improvements effected subsequent to the date upto which compensation for improvements has been adjudged in the decree but also the revaluation of improvements already assessed on the ground that at the time of eviction there was change in condition of such improvements in nature and quality. There is nothing in S.5(3) of the Act either expressly or impliedly indicating that under this sub-section, the tenant can claim only the value of improvements effected after the passing of the decree. This Court in Ammalu v. Vellachi ( 1973 KLT 842 ) held that under sub-s.(3) of S.5 a revaluation is possible and such revaluation can be claimed only, when and in so far as such revaluation may be necessary with reference to the condition of such improvement at the time of eviction. The words 'condition of such improvements' can only mean a change in the nature and the quality of improvements. The expression 'the date upto which compensation for improvements has been adjudged' has been interpreted by a Full Bench of this Court in Mathai v. Narayanan Pillai (1960 KLT 1192) to mean the date of the commissioner's visit to the property. This decision was followed in Padmanabhan Nair v. Raghavan Nair (1964 KLT 1019). The other decision referred to by the Trial Court is not an authority for the proposition that under S.5(3) of the Act, a tenant can claim only value of improvements made after passing of the decree. Ext. C-3 mahazar shows that the four 10 year old coconut trees described as item No. 1 therein were ail at the fruit-bearing stage. It is quite possible that these trees might have already started yielding after a lapse of one year and 10 months after the suit property was inspected by the commissioner; and therefore as regards this item, the revision petitioner can justifiably claim that there has been change of condition of the improvements in nature and quality. But as regards items 3 and 4 it is difficult to hold that they might have started yielding within one year and 10 months. In the circumstances the revision petitioner is only entitled to claim revaluation of item No. 1 in Ext. C-3 mahazar. For this limited purpose the Court below will issue a commission at the expense of the revision petitioner.