UMMINI VASAVAN Vs. VAIRAVAN SARASWATHY

JUDGEMENT

(1.) The appellant is the 2nd defendant in a decree for redemption, which relegated assessment of compensation for improvements to execution. The decree holder, applying for execution, moved for a commission to assess improvements. Two items only in the commissioner's report form the subject matter of this appeal: the first is a drain across the mortgaged property, of which the cost is estimated by the commissioner at Rs. 500/-, but the time of opening could not be assessed by him; and the second 94 coconut palms and 10 jack trees extant at the time of the mortgage for which the commissioner assessed compensation under S.11 of the Kerala Compensation for Tenants' Improvements Act, XXIX of 1958 hereinafter 'the Act' read along with the table published by the Government under S.13(i)(b)(iii) of the Act [Vide 1961 KLT (Rules & Notifications) 138]. The Courts below concurred to negative compensation for both these items. Hence this second appeal.

(2.) The primary burden to prove existence of improvement on the property in possession of the mortgagee, for which compensation is due, to him, is on the mortgagee. Mere presence of a drain across the land, without proof that it is a work of the mortgagee beneficial to the property, will not show it to be an item of improvement. The mortgagee has given no evidence in this regard. As observed by the Privy Council in Radha Kishun v. Khurshed Hossein ( AIR 1920 PC 81 , 83), " of things that do not appear and things, that do not exist the reckoning in a Court of law is the same." Things not proved have therefore to be taken as non existent for purposes of adjudication. Further, the observation of the Courts below that the name of the property as "Ovuthalachal purayidom" 'Ovu' and 'Chal' both denote a channel in vernacular is indicative of a drainage channel in the property even before the land registration appears right. The Courts below were therefore justified in not awarding cost of the drain to the mortgagee.

(3.) As regards the coconut palms and jack trees extant on the property at the time of the mortgage: The following sections of the Act have to be read: