SARASAMMA Vs. LAISAL ESTHER

JUDGEMENT

(1.) REVISION petitioner is the 3rd judgment debtor in o. S. No. 140 of 1967 before the Munsiff's Court, Nedumangad. The decree holder is the respondent in the revision.

(2.) THE suit was one for recovery of possession after setting aside two sale deeds; in exercise of a right of preemption. THE petitioner was in possession of the properties on the strength of the sale deeds sought to be set aside. Though the suit was dismissed by the trial court, in appeal the decree was reversed and the suit was decreed allowing recovery of the plaint schedule properties after setting aside the sale. THE appellate decree was confirmed in Second Appeal also.

(3.) LEARNED counsel for the petitioner Shri Krishnamani has very vehemently contended that under S. 51 of the Transfer of Property Act, (for short 'the T. P. Act') a bona fide holder under defective title who makes improvements in the property is entitled to claim value of such improvements at the time of eviction and the proper time for raising such a claim is the time when actual eviction is sought for in execution. According to learned counsel the fact that such a claim for value of improvements has not been made in the suit and no provision is made in the decree regarding value of improvements may not disentitle a bona fide holder under defective title from claiming value of the improvements for the first time in execution if he-satisfies the other requirements of the Section. The learned counsel has contended that the petitioner in this case is a person who satisfies all the requirements of S. 51 of the T. P- Act and as such is entitled to claim value of improvements in the execution proceedings for the first time and get it adjudicated and paid before actual eviction. The view taken by the Execution Court that since no provision regarding value of improvements is made in the decree, the petitioner is not entitled to get value of the improvements is unsustainable in law in the light of the provisions contained in S. 51 of the T. P. Act which specifically confers a right to claim value of the improvements at the time of eviction. In this connection the decision of the Supreme Court reported in Narayana Rao v. Basavarayyappa (AIR 1956 SC 727) was also strongly relied upon by the learned counsel.