DHONDIBA NAMDEORAO BHOSALE Vs. SYED ISMAIL SYED ASADULLA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 12.8.1987 in Regular Civil Appeal No. 13/1982 decided by 2nd Additional District Judge, Latur, by which, the lower appellate court reversed the judgment and decree of the trial court.

(2.) In support of the appeal, Mr. S.S.Bora, learned Counsel for the appellant, submitted that the Second Appeal is being pressed only in so far as the part of the appellate decree in Para No.28 of the judgment, setting aside the decree of the trial court in respect of costs of improvement. Mr. Bora further submitted that no other points are being raised by him in this appeal except the above.

(3.) According to Mr.Bora, the lower Appellate Court placed reliance on Section 51 of The Transfer of Property Act,1882 to come to the conclusion that the Civil Court cannot decide the issue about costs of improvement and the issue be always left to be decided by the Executing Court when the execution proceedings are filed. The only reason, given by the lower appellate court for the said finding, is that the valuation of improvement can be estimated at the time of eviction and, therefore, according to lower appellate court, it was not necessary to ascertain valuation of improvement. Assailing this finding on the question of law, Mr.Bora argued that the said part of Para 28 of the lower appellate court's judgment is illegal and will have to be set aside.