ASGAR Vs. VASUDEVA MENON

JUDGEMENT

(1.) The plaint schedule property was part of the property which belonged to Vengunadu Kovilakam. In 1897 it leased out 909 acres to a foreigner for 75 years. The foreigner assigned it to a limited company. The Kovilakam leased out another 5 acres also to the company for 43 years, in 1945 the company assigned the property to another company, which assigned different parcels of the property to various persons including M/s.K.J.Plantations. In 1978 M/s.K.J.Plantations assigned the plaint schedule property to the petitioners by registered documents. Meanwhile, district court, Palakkad passed a final decree for partition in O.S.No.1 of 1964 filed by some members of the Kovilakam in respect of its properties including the properties involved in this proceeding. Respondents 16 to 21 who were allotted the property in the final decree filed E.P.No.7 of 2008 for delivery of their property. Claiming that the petitioners are lessees of those properties they filed E.A.No.38 of 2009 to obstruct the delivery. The application was allowed by the executing court in Ex.F.A.No.12 of 2010. This court set aside the order finding that they had not obtained any right in the property. SLP No.27122 of 2012 filed by them was dismissed by the Supreme Court. Later, the petitioners filed E.A.No.411 of 2014 in the executing court claiming that under Section 4(1) of the Kerala Compensation of Tenants Improvement Act 1958 and under Section 51 Transfer of property Act they are entitled to the value of the improvements they have effected in the property. The respondents denied the claim and also contended that their claim was barred by the principle of constructive res judicata in as much as they failed to raise the claim in their earlier execution application, No.38 of 2009 filed under Order 21 Rule 97 of the Code of Civil Procedure. The executing court held that their claim is not hit by the principle of res judicata. It recorded that they gave up the claim made under Section 4(1) of the Kerala Compensation of Tenants Improvement Act . It entered a finding that they are not transferees and hence not entitled to the benefit of Section 51 of the Transfer of Property Act. This is challenged in this Original Petition.

(2.) Heard the learned senior counsel Sri.T.Krishnanunni appearing for the petitioners, and learned counsel Sri.Badruddin appearing for the respondents.

(3.) It is seen from the execution application filed by the petitioners that they claimed value of improvements under Section 4 (1) of the Compensation for Tenants Improvements Act and Section 51 of the Transfer of Property Act. But the executing court has not entered a finding on the claim made under Section 4 (1) of the Compensation for Tenants Improvements Act stating that it was not pressed at the hearing by their learned counsel. It is not disputed before me that such a submission was made by the learned counsel. But the argument is that the counsel had no authority to relinquish the claim. But in view of the finding I propose to enter on the essential question of applicability of the principle of constructive res judicata, I am not examining the petitioners' entitlement to compensation under Section 4(1) of the Compensation for Tenants Improvements Act on the facts of the case.