MADHAVAN SREEDHARAN Vs. MANDAKINI SARADA

JUDGEMENT

(1.) The second appeal which arises in execution of a decree for redemption of a mortgage and recovery of possession of the decree schedule property is filed by the plaintiff and the question in the appeal relates to his claim for expenses incurred for reclaiming the decree schedule property. The execution court allowed him only one third of the reclamation charges in view of the decision in Varghese Philipose v. The Travancore Devaswom Board 1956 KLT Short Notes 24 which held that when the defendants are awarded full value of improvements in respect of the trees planted on the bund, they are entitled to get only one third of the cost of construction of the bund. The learned District Judge, on the other hand, awarded him Rs. 1064 being the full reclamation charges calculating the same at Rs. 2 per 100 ft.

(2.) The only question in the second appeal is whether the plaintiff is entitled to get the sum of Rs. 1064 as found by the Judge or is entitled to only one third of the same. The contention of the learned counsel for the appellant was that S.9 of Act 29 of 1958 is controlled by S.7 of the said Act and when therefore value of improvement is given in respect of a particular item of property on the basis of S.7 there is no scope for award of value of improvements under S.9. S.4 confers the right on the tenant to the value of improvements. S.8 and 9 only prescribe the method of valuing the improvements. Reclamation of land for agricultural purposes is an improvement in view of S.3(f) of Act 29 of 1958 and the quantum of improvement regarding the same has to be fixed under S.9 of the Act. If for the purpose of planting trees any levelling up has been done it may not be open to the person making the improvement to claim separately for the reclamation. On the other hand, if reclamation has been done not for the propose of planting trees alone but as an independent work the tenant under the Act is entitled to the value of the same. Much of the controversy in the case before me is resolved by the provisions contained in Ex. P2 the deed of mortgage which authorises the mortgagee plaintiff to reclaim the property and claim value for the same. The total extent of the property is 43 cents and the number of trees in the property is only 19. The reclamation was therefore done on the basis of the contract between the parties for which the mortgagor had undertaken to pay. In these circumstances. I do not think any interference is called for with the decree of the learned Judge. I therefore dismiss the second appeal. But I make no order as to costs.