Perusal of the aforesaid section makes it
clear that the aforesaid provision, to my mind, does
not anywhere prohibit adjudication of cost of
improvement by a civil court, nor does it provide for
such adjudication being made by the Executing Court
at the time of eviction. As a matter of fact, it is a
civil court, which decides all the issues between the
parties, including the issue of damages etc. and such
exercise would better be done by the civil court by
framing an issue for levy of damages. According to
me, after all, assessment of costs for improvement is
in the nature of damages to be awarded to the party.
In normal civil proceedings, assessment of damages is
to be made by the civil court only since the issue of
damages is broadly connected with the other
substantive issue to be decided by the civil court.
At any rate, according to me, Section 51 of the
Transfer of Property Act does not prohibit decision
or assessment of the costs of improvement by regular
civil court. It may be that even executing court
make an assessment, but then the adjudicatory
process, even on the assessment, deserves not to be
delayed by leaving the job to the executing Court.
The ultimate object is to avoid multifarious
proceedings and to curtail the length of litigation.
"interest republicae ut sit finislitum" that is to
say; it concerns the state that there should be an
end to law suits. In the light of above, I am
inclined to answer the question in the affirmative.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.283/1987
Dhondiba Namdeorao Bhosale
VERSUS
Syed Ismail Syed Asadulla
CORAM: A.B.CHAUDHARI ,J.
DATE : 24th June, 2013.
Citation; 2014(2) ALL MR 261
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.
4) None appeared for the respondents.
5) Having heard the learned Counsel for the
appellant and having gone through the impugned
judgments and orders passed by the courts below, I
frame following substantial question of law:
“Whether Section 51 of the Transfer of
Property Act prohibits the civil court
from ascertaining the valuation of
improvement costs and then passing a
decree accordingly and whether the said
exercise of assessment should be left
over to the executing court?”
My answer is No.
REASONS:
6) Section 51 of the Transfer of Property Act
reads thus:
“51. Improvements made by bona fide
holders under defective titles. When
the transferee of immovable property
makes any improvement on the property,
believing in good faith that he is
absolutely entitled thereto, and he is
subsequently evicted therefrom by any
person having a better title, the
transferee has a right to require the
person causing the eviction either to
have the value of the improvement
estimated and paid or secured to the
transferee, or to sell interest in the
property to the transferee at the then
market value thereof, irrespective of
the value of such improvement. The
amount to be paid or secured in respect
of such improvement shall be the
estimated value thereof at the time of
the eviction. When, under the
circumstances aforesaid, the transferee
has planted or sown on the property
crops which are growing when he is
evicted therefrom, he is entitled to
such crops and to free ingress and
egress to gather and carry them."
7) Perusal of the aforesaid section makes it
clear that the aforesaid provision, to my mind, does
not anywhere prohibit adjudication of cost of
improvement by a civil court, nor does it provide for
such adjudication being made by the Executing Court
at the time of eviction. As a matter of fact, it is a
civil court, which decides all the issues between the
parties, including the issue of damages etc. and such
exercise would better be done by the civil court by
framing an issue for levy of damages. According to
me, after all, assessment of costs for improvement is
in the nature of damages to be awarded to the party.
In normal civil proceedings, assessment of damages is
to be made by the civil court only since the issue of
damages is broadly connected with the other
substantive issue to be decided by the civil court.
At any rate, according to me, Section 51 of the
Transfer of Property Act does not prohibit decision
or assessment of the costs of improvement by regular
civil court. It may be that even executing court
make an assessment, but then the adjudicatory
process, even on the assessment, deserves not to be
delayed by leaving the job to the executing Court.
The ultimate object is to avoid multifarious
proceedings and to curtail the length of litigation.
"interest republicae ut sit finislitum" that is to
say; it concerns the state that there should be an
end to law suits. In the light of above, I am
inclined to answer the question in the affirmative.
In the result, I make the following order.
ORDER
(i) The Second Appeal No.283/1987 is partly
allowed;
(ii) The Judgment and order dated 12th August, 1987
in Regular Civil Appeal No.13/198 passed by
the 2nd Additional District Judge, Latur, with
reference to observation in Para 28 of the
judgment only as to the order and decree about
costs of improvement, is set aside by
restoring the decree of the trial court for
cost of improvements;
(iii) Rest of the lower appellate court decree is
confirmed.
sd/
(A.B.CHAUDHARI)
JUDGE
Print Page
clear that the aforesaid provision, to my mind, does
not anywhere prohibit adjudication of cost of
improvement by a civil court, nor does it provide for
such adjudication being made by the Executing Court
at the time of eviction. As a matter of fact, it is a
civil court, which decides all the issues between the
parties, including the issue of damages etc. and such
exercise would better be done by the civil court by
framing an issue for levy of damages. According to
me, after all, assessment of costs for improvement is
in the nature of damages to be awarded to the party.
In normal civil proceedings, assessment of damages is
to be made by the civil court only since the issue of
damages is broadly connected with the other
substantive issue to be decided by the civil court.
At any rate, according to me, Section 51 of the
Transfer of Property Act does not prohibit decision
or assessment of the costs of improvement by regular
civil court. It may be that even executing court
make an assessment, but then the adjudicatory
process, even on the assessment, deserves not to be
delayed by leaving the job to the executing Court.
The ultimate object is to avoid multifarious
proceedings and to curtail the length of litigation.
"interest republicae ut sit finislitum" that is to
say; it concerns the state that there should be an
end to law suits. In the light of above, I am
inclined to answer the question in the affirmative.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.283/1987
Dhondiba Namdeorao Bhosale
VERSUS
Syed Ismail Syed Asadulla
CORAM: A.B.CHAUDHARI ,J.
DATE : 24th June, 2013.
Citation; 2014(2) ALL MR 261
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.
4) None appeared for the respondents.
5) Having heard the learned Counsel for the
appellant and having gone through the impugned
judgments and orders passed by the courts below, I
frame following substantial question of law:
“Whether Section 51 of the Transfer of
Property Act prohibits the civil court
from ascertaining the valuation of
improvement costs and then passing a
decree accordingly and whether the said
exercise of assessment should be left
over to the executing court?”
My answer is No.
REASONS:
6) Section 51 of the Transfer of Property Act
reads thus:
“51. Improvements made by bona fide
holders under defective titles. When
the transferee of immovable property
makes any improvement on the property,
believing in good faith that he is
absolutely entitled thereto, and he is
subsequently evicted therefrom by any
person having a better title, the
transferee has a right to require the
person causing the eviction either to
have the value of the improvement
estimated and paid or secured to the
transferee, or to sell interest in the
property to the transferee at the then
market value thereof, irrespective of
the value of such improvement. The
amount to be paid or secured in respect
of such improvement shall be the
estimated value thereof at the time of
the eviction. When, under the
circumstances aforesaid, the transferee
has planted or sown on the property
crops which are growing when he is
evicted therefrom, he is entitled to
such crops and to free ingress and
egress to gather and carry them."
7) Perusal of the aforesaid section makes it
clear that the aforesaid provision, to my mind, does
not anywhere prohibit adjudication of cost of
improvement by a civil court, nor does it provide for
such adjudication being made by the Executing Court
at the time of eviction. As a matter of fact, it is a
civil court, which decides all the issues between the
parties, including the issue of damages etc. and such
exercise would better be done by the civil court by
framing an issue for levy of damages. According to
me, after all, assessment of costs for improvement is
in the nature of damages to be awarded to the party.
In normal civil proceedings, assessment of damages is
to be made by the civil court only since the issue of
damages is broadly connected with the other
substantive issue to be decided by the civil court.
At any rate, according to me, Section 51 of the
Transfer of Property Act does not prohibit decision
or assessment of the costs of improvement by regular
civil court. It may be that even executing court
make an assessment, but then the adjudicatory
process, even on the assessment, deserves not to be
delayed by leaving the job to the executing Court.
The ultimate object is to avoid multifarious
proceedings and to curtail the length of litigation.
"interest republicae ut sit finislitum" that is to
say; it concerns the state that there should be an
end to law suits. In the light of above, I am
inclined to answer the question in the affirmative.
In the result, I make the following order.
ORDER
(i) The Second Appeal No.283/1987 is partly
allowed;
(ii) The Judgment and order dated 12th August, 1987
in Regular Civil Appeal No.13/198 passed by
the 2nd Additional District Judge, Latur, with
reference to observation in Para 28 of the
judgment only as to the order and decree about
costs of improvement, is set aside by
restoring the decree of the trial court for
cost of improvements;
(iii) Rest of the lower appellate court decree is
confirmed.
sd/
(A.B.CHAUDHARI)
JUDGE
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