Supreme Court - Daily Orders
R Somanathan And Co. Represented By Its ... vs P. Sankaran on 16 November, 2022
Bench: Sanjay Kishan Kaul, Abhay S. Oka
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7865-7866/2019
R SOMANATHAN AND
CO. REPRESENTED BY ITS PARTNER Appellant(s)
VERSUS
P. SANKARAN Respondent(s)
O R D E R
But for this matter being taken up now, this litigation would have hit half a century! The subject matter of dispute is land measuring 15 feet by 47 feet which was vacant with a pathway located in Tuticorin Municipal Town Survey No.1400/1 in Block No.15 of present 24th ward, formerly 2nd ward, Tuticorin Sub District, Palayamkottai Registration District which was leased to the respondent by the appellant, obviously more than half a century back. On the land, the respondent constructed a superstructure. The appellant sought eviction of the respondent both from the land and the superstructure vide suit proceedings No.400/1974 before the Principal District Munsif, Tuticorin in which I.A. Signature Not Verified No.1241/1974 was filed under Section 9 of the Tamil Digitally signed by ASHA SUNDRIYAL Date: 2022.12.01 17:28:49 IST Reason: Nadu City Tenants Protection Act, 1921 (hereinafter referred to as “the said Act”).
2In order to appreciate the contours of the controversy, we would now have to turn to the said Act enacted with the objective of giving protection against eviction to tenants. Section 4 specifies disposal of suits for ejectment and stipulates that in a suit for ejectment against a tenant in which the landlord succeeds, the Court would ascertain the amount of compensation, if any, payable under Section 3 and the decree shall declare the amount. Section 3 provides for payment of compensation of ejectment and reads as under:
“3. Payment of compensation on ejectment.- Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of his predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees which may have been planted by him on the land and of any improvements which may have been made by him.” The objective of Sections 3 and 4 read together is to compensate a tenant who has raised construction by spending his own money on vacant land.
Section 9 is in the nature of an exception to the aforesaid as it permits a tenant to move an application to the Court for directing the landlord to sell the land. It stipulates that any tenant who 3 is entitled to compensation under Section 3 and against whom a suit of ejectment is filed by the landlord, can move an application within one month for an order that the landlord shall be directed to sell for a price to be fixed by the Court, whole or part of, the extent of land specified in the application. Clause 1 (b) of Section 9 requires the Court to first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant and then fix the price.
The scenario which emerges from the reading of the aforesaid provisions is that in an endeavour of a landlord to seek ejectment of a tenant which was let out as a vacant land but constructed thereon, the landlord is required to compensate the tenant for the structure. However, if the tenant is willing to pay the landlord for the land, then the landlord would be required to transfer the land to the tenant at a price to be fixed by the Court. In determining what is the extent of the land to be transferred, the Court is required under Section 9(1)(b) to decide the minimum extent of land which may be necessary for convenient enjoyment by the tenant. Thus, it is not as if the whole part of the land which has been let out is necessarily required to be transferred but only such part of the land which would be required 4 for enjoyment of the construction made by the tenant. Another relevant aspect is that the said clause
(b) of sub-Section (1) of Section 9 of the said Act also stipulates that while fixing the price of the minimum extent of land to be decided as aforesaid, it could be either the minimum extent of land as aforesaid on or the extent of land specified in the application under Clause (a) sub-section (1) “whichever is less”.
Thus, if a tenant moves an application seeking lesser extent than the total land leased out to him on which he has constructed himself i.e. is of the view that he does not need the whole land for the enjoyment of the structure, then it is that portion of the land leased out which would be required to be transferred.
The father of the respondent was the original tenant and thus, had prayed for only 47 feet by 15 feet of vacant land which is the land according to the appellant that he had leased out. The land was let out to the father of the respondent at Rs.20 per month in 1942 and the appellant purchased the land in 1974. However, IA No.1505/1975 was filed praying that the measurement given in the application was a mistake and it should be read as 15 feet by 57 feet instead of 47 and thus, sought amendment to the 5 Schedule of the property given in the application. We may note that in the eviction suit as well as the original application, the two parties were ad idem on the extent of land being 15 feet by 47 feet. It is the say of the learned counsel for the appellant that actually the extra land arose as the respondent encroached on the part of the land of the appellant which was adjacent and had been originally let out to another tenant. This application was dismissed by learned Civil Judge on 07.11.1975 declining amendment of the Schedule of the petition and the order was not assailed further and attained finality.
Learned trial Court, however, while allowing the application under Section 9 of the said Act directed the respondent to sell an extent of 58.6 feet North- South and 16.3 feet East-West [955.18 sq.feet.] while allowing the Section 9 application. According to the appellant, this ignored the earlier order dated 07.11.1975 whereby the endeavour of the respondent to amend the application had been declined and in view of the purport of Section 9 as elaborated aforesaid, was not permissible as the lesser extent of land had to be taken, apart from the fact that this was never leased out to the respondent.
It appears that despite the aforesaid in the decreetal order, the land was shown as originally set 6 out in the application i.e. 15 feet by 47 feet and consequently, the father of the respondent filed an application being IA No.337/2002 in IA No.1241/1974 in O.S. No.400/1974 to have the extent in the Schedule of decree amended which application was allowed by the trial Court on 12.04.2002.
The appellant preferred CRP (NPD) No.751/2002, where the learned Judge examined the revision petition and after noticing that the respondent had encroached upon the appellant’s property subsequently and that the description of the land in the original suit filed by the appellant as well as in the application under Section 9 of the said Act was to the extent of 15 feet, by 47 feet allowed the revision petition by order dated 04.10.2002.
The endeavour of the respondent by filing a Review Petition No.146/2002 was not successful having been dismissed on 27.06.2003 by the High Court and the SLP[C] No.21827/2003 was also dismissed by this Court on 23.02.2004. That should have rested the matter of the extent of the land.
The respondent thus, took out Execution Petition for enforcement of the order being E.P. No.65/2005 for execution of the sale deed by the appellant in his favour but once again set out the schedule of property as 58.6 feet by 16.3 feet. Since the extent 7 given in the execution petition was erroneous, the appellant filed EA No.250/2006 praying for amendment of the Schedule in the execution petition filed by the respondent, somewhat a misadventure. The Executing Court allowed EA No.250/2006 on 28.08.2006 restricting the Schedule of property area. The respondent filed the Revision Petition CRP (NPD) No.1092 of 2006 which was allowed and consequently EA No.250/2006 filed by the appellant stood dismissed. It appears that the rationale for the same was that it is not the appellant who could have sought an amendment of the Execution Petition filed by the respondent. This order was then questioned by the appellant in SLP [C] Nos.24100 and 25389/2014 which was dismissed on 14.03.2016 but with liberty. The liberty is set out as under:
“This order shall not however prevent the petitioners from raising all such contentions as may be legally open before the competent court at the appropriate stage regarding the extent and description of the land/property covered by the decree.” It is during the pendency of the SLP that the executing Court passed an order dated 20.06.2014 allowing the Execution Petition. This was assailed by the appellant in the impugned order dated 30.11.2016 in CRP (NPD) Nos.2212 & 2213 of 2014 8 before the High Court. However, this revision petition was dismissed giving rise to the present proceedings.
We have heard leaned counsel for the appellant. None appeared for the respondent despite service. We thus, directed vide order dated 01.10.2019 that the Supreme Court Legal Services Committee may appoint a counsel to assist us on behalf of the respondent. In pursuance to the nomination, learned counsel is present but he states that despite the best efforts, the respondent has not given the Vakalatnama. That being the position, we have heard learned counsel for the appellant and examined the record.
In view of the discussion aforesaid, we are of the view that the dispute lies within a very narrow compass despite such elaborate facts and past history. The issue is can the Execution Court go beyond the decree which has become final. Insofar as the proceedings for eviction are concerned, in view of the option available to the respondent as tenant under Section 9 of the said Act, that option was exercised. Consequently, instead of the decree for eviction, what followed was a decree for transfer of the land in favour of the respondent as a tenant on the amount being determined as payable to the appellant. The endeavour of the respondent 9 to expand the area of land beyond the scope of the original application did not succeed when the application for amendment was rejected and that order has become final by order dated 07.11.1975. Despite this, orders were passed at the final stage for a larger area of land but the decree drawn up was as per the application which had been permitted to be prosecuted under section 9 of the Act and the area specified therein. Even that did not put an end to the controversy despite the matter going on back and forth and the aspect of the land from which eviction could be sought being confined to 47 ft by 15 ft.
The execution Petition filed once again sought to expand the area to 57 by 15 ft. What we label as a possible misadventure was the endeavour of the appellant to seek amendment of the execution petition, which did not really lay in the hands of the appellant. The appellant was only required to file the objections insofar as the area to be transferred was concerned for which the sale deed had to be executed. Thus, in the revision Petition filed by the respondent vide order dated 22.05.2014 the same was allowed.
Faced with this situation, the appellant moved this Court which dismissed the SLP but with 10 clarification extracted aforesaid. The problem also seems to have been a little aggravated by the fact that pending SLP, the execution petition came to be decided.
The High Court, in our view, should have taken note of the order of this Court dated 14.03.2016 and keeping in mind the basic principle of the executing Court not going beyond the decree and the respondent’s application to expand the area to be transferred to him having been rejected in the main proceedings, the sale deed was required to be executed and registered by the appellant only insofar as the decree was passed for 47 ft by 15 ft. We put to learned counsel for the appellant as to whether the cause for further litigation is only a small strip of land which would arise but then he explained that there is an adjacent land of the appellant to the very same land and the access to this is affected on account of this extra area being held entitled to be transferred to the respondent. We are thus, constrained to allow the appeal and restrict the execution of the sale deed in the execution petition to the area of 47 ft by 15 ft alone.
We are informed, at this stage, that that the sale deed already stands executed.
11Thus, a rectification deed would have to be executed in terms of our order passed today, by the Executing Court.
The appeals are allowed in the aforesaid terms, leaving parties to bear their own costs.
…………………………………………….J. [SANJAY KISHAN KAUL] …………………………………………….J. [ABHAY S. OKA] NEW DELHI;
NOVEMBER 16, 2022.
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ITEM NO.101 COURT NO.2 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7865-7866/2019 R SOMANATHAN AND CO. REPRESENTED BY ITS PARTNER Appellant(s) VERSUS P. SANKARAN Respondent(s) ([ RETAIN ITS POSITION ] IA No. 42686/2021 - CONDONATION OF DELAY IN FILING) Date : 16-11-2022 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE ABHAY S. OKA For Appellant(s Mr. V. Prabhakar, Adv.
Ms. Jyoti Parashar, Adv.
Mr. N. J. Ramchandar, Adv.
Mr. S. Rajappa, AOR For Respondent(s) Mr. Rajeev Kumar Bansal, AOR Mr. Girish Patel, Adv.
Mr. Akshay K. Ghai, Adv.
Mr. Manish Das, Adv.
Mr. Ganesh Barowalia, Adv.
UPON hearing the counsel the Court made the following O R D E R Delay in filing written submissions with affidavit is condoned.
The appeals are allowed in terms of the signed order. Pending application, if any, stands disposed of.
(ASHA SUNDRIYAL) (POONAM VAID)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed order is placed on the file]