CHINNA ALIAS LEKSHMIKUTTY AMMA Vs. MUHAMMAD ALI

JUDGEMENT

(1.) This second appeal is by the additional 2nd plaintiff whose claim for improvement value has been rejected concurrently by the courts below.

(2.) The suit herein was filed by the 1st plaintiff for recovery of the plaint leasehold from the defendant tenant, on the ground that the 1st plaintiff required the property bona fide for her own cultivation. It was decreed by the Trial Court. The decree of the Trial Court was confirmed in appeal by the defendant before the Sub Court, Palghat. On second appeal, the High Court set aside the decree and remanded the suit for fresh disposal in the light of the requirement as to primary need introduced by the Madras Act VII of 1954. Pending the defendants appeal before the Sub Court (i. e.) on 18-2-1947 the 1st plaintiff took delivery of possession of the property in execution of the Trial Courts decree and thereafter on 4-4-1947 she sold it to the 2nd plaintiff. Subsequent to the remand order of the High Court and pending the retrial of the suit, the defendant applied for redelivery of property. The 2nd plaintiff who was impleaded as the 2nd respondent to this application set up a claim to the extent of Rs. 3,951-12-9 on account of improvements by way of reclamation, fresh constructions and kuzhikoor alleged to have been effected by her on the property since the date of her purchase. The suit and restitution matters were jointly tried and disposed of by the Munsiff with the result that the suit was dismissed and the redelivery was ordered unconditionally. Two separate appeals were taken by the 2nd plaintiff before the court below. One of these appeals, viz., that directed against the judgment in the suit was stayed under Kerala Act I of 1957. It is the order disposing of the other appeal regarding disallowance of improvement value to the extent only of Rs. 526-4-0, that is the subject matter of this second appeal.

(3.) The learned Munsiff in disposing of the matter mainly relied on his finding that most of the improvements listed by the 2nd plaintiff had not really been effected and as regards the rest she was not entitled to set them up as improvements at all. The learned Judge for his part held that the appellant being only a transferee pendente lite could not claim the benefit of S.51 of the T. P. Act which, after all, was the only provision of law which could be appealed to by her and in that view found it unnecessary to decide whether the improvements even to the extent claimed in appeal had been really effected. Mr. Kuttikrishna Menon appearing before me for the appellant referred to Mathumsa Rowther v. Apsa Bin, 21 MLJ 969, and strongly urged that there was no reason in law or equity why a person in the position of the defendant should be allowed to be unduly enriched at the expense of the 2nd plaintiff who had bona fide effected valuable improvements in the property and he prayed that the matter may be remitted to the court below for fresh disposal after finding on the question of fact involved.