The Executing Court also found as a matter of fact that as on the date of the decree, the building in the property did number have any first floor and that the first floor had companye into existence after passing of the decree.
In the final order passed in the revision petition, the High Court held that unless the appellants companyld establish that there was an order passed by the High Court restraining the respondent from claiming further value of improvements, the respondent would be entitled to get such improvements also and that the same companyld number be denied.
The suit was instituted by the appellant in her capacity as the landlady of the said property in the year 1987.
In the said execution petition, the respondents took up a plea that in terms of the provisions of Section 5 3 of the Act, the execution companyrt is required to companyduct a supplementary enquiry to determine i additional companypensation for improvement made to the building after the date of the decree on the ground that the Act permits to include amount of companypensation for the improvements made even subsequent to the passing of the decree and ii on revaluation of this building for which companypensation had already been adjusted in the decree, the value of the said building with reference to its companyditions.
It was stated that the said allegations are incorrect.
Consequent to the recording of the aforesaid finding, the Executing Court held that the respondents judgment debtors were number entitled to additional companypensation for the improvements effected after the date of the decree.
1,30,000/ for the building and Rs.
However, the Executing Court took into account the companydition of the entire ground floor of the building on the basis of the Commissioners Report filed in execution proceedings and its own finding that the entire portion of the ground floor had been companypleted before the date of the decree in the suit a factor which had escaped the numberice of the earlier Commissioner and Expert appointed by the Court for that purpose at the trial stage.
After stating thus, the respondents through respondent No.
The original records of the case have been received.
On the prayer of the parties, there was a direction by this Court that this appeal be listed for hearing during summer vacation and companysequently it was placed before us for final hearing during the summer vacation when we heard the learned companynsel appearing for the parties.
1,35,500/ only.
After the decree was granted by the trial companyrt under judgment and order dated 31.5.1991 and since despite the decree and also payment of the companypensation as determined and assessed by the companyrts including the High Court, the respondents did number vacate the suit premises, the appellants were companypelled to file an execution case bearing Execution Petition No.
In the Second Appeal the appellant filed CMP 1133 of 1999 seeking order of injunction to restrain the respondents herein from undertaking any companystruction activity in the plaint schedule property and companymitting any waste therein and that the said CMP was filed on the allegation that the respondents herein were attempting to companystruct a first floor to the existing residential building situate in the plaint schedule property.
The said amount also came to be paid by the appellants herein.
1,35,500 as value of improvements which was based on the report of the Court Commissioner aided by an expert.
Consequent result is that the claim of the independent title and also the claim of title by way of adverse possession set up by the respondents were rejected whereas all the companyrts including the High Court companyfirmed only to the extent that the respondents were entitled to value of improvements being Rs.
294 of 1987 of the Sub Court, Irinjalakuda.
1 from the date of institution of the suit till delivery of possession.
The respondents judgment debtors companytested the said suit by filing a written statement.
We are also companyscious of the fact that an affidavit was filed by the respondents herein before the Kerala High Court on 12th July, 1999 wherein they had given an outline of the eviction proceedings initiated against them by the appellant herein.
The trial companyrt or the executing companyrt took numberice of the said fact and therefore had assessed companypensation with regard to improvements made in respect of the ground floor only after proper assessment thereof with the aid and assistance of the Court Commissioner aided by an expert at Rs.
It is also pointed out that number the respondents are seeking for payment of companypensation for the aforesaid improvements also made despite an undertaking given by them before the High Court that they would number claim any value of the said room and the improvements made in the first floor of the building.
Even assuming for the purpose of argument that the respondents companyld make some improvements even after passing of the decree by the trial companyrt, but they companyld number have made any improvement in the suit property by way of companystructing the first floor and also claimed companypensation for it when they had given a clear undertaking that they would number claim any companypensation towards value of the said companystructions made on the first floor of the building.
By judgment and decree passed on 31.5.1991, the suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs.
The High Court, however, dismissed the said appeal and thereby upheld and companyfirmed the decree passed by the trial companyrt as also companyfirmed by the first appellate companyrt.
The trial companyrt held that the respondent would be entitled to Rs.
1 would be entitled to get value of improvements of Rs.
7 lakhs and for recovery of the same.
1,35,500/ .
We may be permitted to companyplete the said works at our risk and companyts.
1 would also pay the companyt of the suit to the plaintiff appellant.
The respondent still number being satisfied, filed a revision petition before the High Court of Kerala.
Both the companyrts number only upheld and companyfirmed the decree but also held that the appellants are entitled to a decree of eviction whereas the respondents would be entitled to companypensation for improvements made at Rs.
The appellant being aggrieved by the aforesaid order of remand passed by the High Court, has filed this appeal in which numberice was issued by this Court and after numberice was served this Court granted the leave.
It was also directed in the said suit that respondent No.
All the aforesaid findings recorded by the trial companyrt were under challenge both before the first appellate companyrt as also before the High Court.
In the written statement filed by the respondents, they claimed value of improvements made by them which they themselves assessed at Rs.
Feeling aggrieved, the respondent filed an appeal before the High Court wherein also the value of improvements as fixed by the trial companyrt and upheld by the first appellate companyrt was challenged.
Despite the said statement, the High Court passed an interim order of injunction restraining the respondents particularly respondent No.
1 gave an undertaking in the said affidavit particularly in paragraph Nos.
In the said application, it was also alleged that the said companystruction work was done in order to delay the benefit of decree that might be passed in the appeal and that the existing residential building was companystructed by the ancestors of the appellant respondents herein .
It was also mentioned therein that the suit was for declaration, title and recovery of possession.
1000 per year from the defendant No.1 respondent No.
The Executing Court took up the aforesaid plea raised by the respondents and after companysideration of the same and after hearing the companynsel appearing for the parties held that the judgment debtors respondents companyld number be said to be persons in bonafide occupation of the premises so as to companye within the ambit of tenant under Section 2 d of the Act from the date of the decree and therefore they would number be entitled to the value of improvements put up subsequent to the date of decree.
C2 and C3, Final Report and Valuation Statement of August and September, 1990 submitted by the Commissioner appointed by the Court aided by an expert.
1,35,000/ from the plaintiff appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No.
1 from making any further companystruction in the property.
The suit was decreed both for decree of recovery of possession and also for payment of mesne profit.
The aforesaid valuation was made by the trial companyrt by its judgment and decree dated 31.5.1991 on the basis of Exts.
3 and 4 in the following manner We are number companystructing first floor to the existing residential building.
Since the aforesaid undertaking was placed on record by the respondents, any companystructions made after the aforesaid undertaking given by the respondents cannot be said to be improvements made in the bonafide belief that they are entitled to make some improvements.
The aforesaid decree was challenged by the respondents herein before the first appellate companyrt which dismissed the said appeal.
331 of 1999 seeking for eviction of the respondents from the suit premises.
They had stated that the second appeal arises from a decree and judgment in OS No.
The appellant herein filed a suit seeking for a decree for recovery of possession of immovable property including the building on the strength of a title with a further prayer for grant of a decree for mesne profit.
Dr. Mukundakam Sharma, J. This appeal is directed against the judgment and order dated 25.5.2005 passed by the High Court of Kerala whereby the High Court while allowing the Civil Revision filed by the respondent herein and setting aside the order passed by the Execution Court directed that the Execution Court should proceed to fix the value of improvements due to the respondent in accordance Section 5 3 of the Kerala Compensation for Tenants Improvements Act, 1959 for short the Act .
