COLUMBUS Vs. NARAYANAN

JUDGEMENT

(1.) The decree holder in O.S. No. 71 of 1123 on the file of the Anjikaimal District Court is the appellant. The decree allows him to recover the plaint items from the defendants on payment to them of the amount fixed as the value of the improvements effected on the properties. Past and future mesne profits have also been decreed in favour of the plaintiff. The decree was confirmed by this Court in A.S. No. 852 of 1951 subject to the modification that the amount decreed as past mesne profits was limited to such mesne profits due for a period of 3 years prior to the date of the suit. When the decree holder applied for being put in possession of the properties as per the terms of the decree, the first defendant objected by contending that the value of all the items of improvements now found on the properties should be ascertained and fixed and that only on payment of the entire amount due to him on that account he can be deprived of the possession of the properties. He put in a separate petition for the issue of a commission to fix the value of the improvements specified by him. The lower court accepted the contentions of the 1st defendant and ordered the issue of a commission as prayed for by him. The present appeal is directed against that order.

(2.) The points urged on behalf of the appellant are: (1) that the decree in the case was passed on the basis that the defendants are persons in wrongful possession of properties belonging to the plaintiff and that as such defendants cannot be deemed to be tenants entitled to the benefits conferred by the Cochin Tenancy Act, Act XV of 1113, (2) that even if the Tenancy Act is held applicable to this case, the 1st defendant's claim to have a fresh assessment of the value of improvements effected in the properties prior to the date of the decree of the Trial Court cannot be entertained; at best he could only claim a revaluation of such improvements on the ground that there has been substantial change in the conditions of such improvements. He could also claim the value of the improvements effected subsequent to the date of the decree, and (3) that the investigation into the claims put forward by the 1st defendant cannot be a bar to the delivery of properties to the decree holder.

(3.) Before proceeding to consider the points urged on behalf of the appellant, it is necessary to state the circumstances under which the 1st defendant obtained possession of the plaint items. The properties originally belonged to a tarwad known by the name of Pavampayil. From this tarwad the 1st defendant and others had obtained these properties on lease. In such a situation the Pavampayil tarwad mortgaged these items to the V.T.K. Estate in the year 1095. The 1st defendant and others who were already lessees of the properties attorned to the mortgagee Estate and entered into a fresh lease arrangement with the Estate in the year 1116. Three years later, the present plaintiff purchased the equity of redemption of the properties from the Pavampayil tarwad and redeemed the mortgage in favour of the V.T.K. Estate. All the same the plaintiff could not obtain possession of the properties from the lessees. Hence it was that he instituted the present suit on the strength of his title to the properties and on the basis that the lease granted by the mortgagee was determined with the redemption of the mortgage. Even though the defendants resisted the suit, their contentions were repelled except in the respect of the claim for value of improvements effected in the plaint properties, and a decree for eviction was passed against them.