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Parvathiyammal Vs. Sivathanu Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1976Mad339; (1976)2MLJ64
AppellantParvathiyammal
RespondentSivathanu Pillai
Cases ReferredSubba Rao v. Jagannadha Rao
Excerpt:
- .....belonged to the sastha temple of esthamozhy village. the trustees entrusted those items to one arumukam pillai for improving the property and converting the same into a, garden land or paddy land improvements were subsequently effected by arumukam pillai. in consideration of claiming and planting trees on the land and putting up a certain construction for keeping a watchman, arumukam pillai was enjoying the usufruct therefrom. the trustees in o.s. no. 10 of 1123 on the file on the subordinate judge, nagercoil, sought to recover possession. but the suit ended in a compromise decree according to which arumukam pillai was entitled to continue to be in possession and enjoyment of the properties in lieu of the improvements made by him on the properties without paying any amount to the.....
Judgment:

K. Veeraswami, C.J.

1. The third defendant is the appellant. The only question in this-appeal is whether the 3rd defendant would be entitled to the benefits of Section 17 of the Travancore Cochin Compensation for Tenants Improvements Act, 1956. There is a small history which has to be briefly-stated to appreciate the question. Originally, two items of properties, one of an. extent of 161/2 acres waste land and the other a building site, belonged to the Sastha temple of Esthamozhy village. The trustees entrusted those items to one Arumukam Pillai for improving the property and converting the same into a, garden land or paddy land Improvements were subsequently effected by Arumukam Pillai. In consideration of claiming and planting trees on the land and putting up a certain construction for keeping a watchman, Arumukam Pillai was enjoying the usufruct therefrom. The trustees in O.S. No. 10 of 1123 on the file on the Subordinate Judge, Nagercoil, sought to recover possession. But the suit ended in a compromise decree according to which Arumukam Pillai was entitled to continue to be in possession and enjoyment of the properties in lieu of the improvements made by him on the properties without paying any amount to the trust and he should deliver possession of the properties with all the improvements made by him without any objection whatever, excepting the standing crops on 1st December, 1960. One of the terras of the compromise which was embodied in the decree was that Arumukam Pillai should make no further improvement in the properties and that if he did make such improvements, the trust would not be liable there for. At the end of the term to execution there was divergence of opinion between the Subordinate Judge and the District Judge, the latter taking the view that the compromise decree was executable. On that view, he remitted the execution petition to the Subordinate Judge for making an enquiry under Sections 5 and 8 of the Travancore Cochin Act X of 1956 for the assessment of the value on improvements and to give a finding about the claim made by Arumukam Pillai for improvements subsequent to the date of the compromise decree or for revaluation any of improvements already valued to the extent to which the defendant was entitled to make any such claim under Section 5(3) of the Act. There wa.s an appeal against the judgment of the District judge, but it failed. The Subordinate Judge accordingly found that the legal representatives of Arumukam Pillai were not entitled to the value of improvements in respect of item 1 and that they were not also entitled to mesne profits in respect of item 2 as according to him Arumukam Pillai was put in possession of item 2 as well. On that view, the Subordinate Judge did not go into the question of assessment of improvements made in respect of item 1 or the mesne profits in respect of item 2. The 3rd defendant, who was one of the legal representatives of Arumukam Pillai, appealed to this Court which was disposed of by Krishnaswamy Reddy, J. He held that the appellant was not entitled to the value of the improvements made subsequent to the date of the compromise decree and that therefore the Subordinate Judge was right in not going into the question of assessment of the value of improvements. The appeal under the Letters Patent is by the aggrieved 3rd defendant.

2. The related Section we referred to above reads:

Nothing in any contract entered into before the commencement of this Act shall take away or limit the right of a tenant to make improvements and to claim compensation for them in accordance with the provisions of this Act: Provided that nothing herein contained shall affect any agreement in writing registered and made after the effecting of the improvements settling the amount of compensation due therefor at the date of such agreement: Provided further that this Section shall not operate against any contract whereby by the tenant's right to make improvements in the nature of buildings or to claim value of improvements therefor has been taken away or limited.

The Subordinate Judge rightly stated the purport of this Section tobe that any contract subsisting before the commencement of the Act should not have the effect o taking away the right of the tenant to make improvements and to claim compensation for the same. The Act came into force on 31st October, 1965. But the compromise decree in O.S. No. 10 of 1123 on the file of the Subordinate Judge, Nagarcoil, was in 1947. What is contended by Mr. Parasaran for the appellant is-that, though there was a compromise decree, it should only be regarded as having the effect of a contract for the purpose of application of the said Section. In. support of his contention he relied on. Subba Rao v. Jagannadha Rao : [1964]2SCR310 and Rajakumara Venkataperumal Raja Bahadur v. thatha Ramaswami Chetti I.L.R. (1912) Mad. 75 : 1912 M.L.J. 709. We do not think that either of these cases helps him. In the first of these cases, the question was one of res judicata. It was held by Hidayatullah, J., who spoke for the Court.

The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has. been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court could be res judicata whether statutory Under Section 11, Civil Procedure Code, or constructive as a matter of public policy on which the entire doctrine rests.

The last sentence in the excerpt makes the-points clear that for purpose of res judicata an earlier compromise decree cannot be taken as adjudication, which is essential for the application of the doctrine of res judicata.

3. Raja Kumara Venkataperumal Raja Bahadur v. thatha Ramaswami Chetti I.L.R. (1912) Mad. 75 : 21 M.L.J. 709 also had to do with res judicata and the Court observed

The test for determining whether there is an estoppel in any particular case in consequence of decree passed on a compromise is whether the parties decided for themselves the particular matter in dispute by the compromise and the matter was expressly embodied in the decree of the Court passed on the compromise or was it necessarily involved in or was it the basis of, what was embodied in the decree.

Then it proceeded to state what was the basis of a compromise decree, namely, the contract between the parties containing the compromise and observed

At the same time such a decree cannot be regarded as a mere contract, and has got a sanction far higher than an agreement between parties. The parties to the decree cannot therefore put an end to it at their pleasure in the manner that they could rescind a mere contract. Nor can it be impeached on some grounds on which a mere contract could be impeached such as absence of consideration or mistake.

This decision makes it quite clear that although the basis of a compromise decree is the contract entered into between the contending parties, the decree could not in any sense be equated to and be regarded as the same or as equivalent to the contract. Once a decree based on compromise has been made, the compromise has merged in it and what operates is the decree to which the seal of the authority of the Court is attached. On that view, the above Section will have no application to the instant case.

4. The appeal is dismissed with costs.


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