AUGUSTY VAREED Vs. CHACKO BAPPU

JUDGEMENT

(1.) The plaintiffs, who are respondents 1 to 6 sued in O.S. 78 of 1951, in the District Court, Parur, for the redemption of a mortgage, impleading also defendants 12 to 14, the lessees under the mortgagee, who are the appellants herein. The mortgagees and the appellants set up a claim for the value of improvements, payable to them. The lower court decreed a sum of 7 39 odd rupees in all, towards the value of improvements, for the plantations and held, that the appellants are not entitled to the value of a building which they had put up. The appellants have now claimed before us the full value for the plantations & in addition, the value of improvements of the building which was denied to them. It may be mentioned, that the mortgagees also sued the appellants in O. S.103 of 1953 for eviction, on the basis of the lease under which the latter are holding the property, and the lower court has as between the parties therein, fixed the share of the appellants in the value of improvements at Rs. 145 odd; the appellants have therefore preferred the connected appeal A. S.370 of 1955, which we have ordered to be stayed under the provisions of Act 1 of 1957.

(2.) In this appeal, the appellants have filed C. M. P. 4299 of 1959 for permission to raise an additional ground, that they are entitled, before eviction is ordered, to the value of improvements for the plantations computed in accordance with the provisions of the Kerala Compensation for Tenants Improvements Act 1958, Act 29 of 1958, to be referred to hereinafter as the Act, and not nearly to the value, as now determined by the court below, in accordance with the rates prescribed by the contract of lease for valuing the plantations, or with the share specified, of the lessees in the value, we have allowed the point to be raised.

(3.) Two questions arise for decision, first, whether at this stage, the value of the trees can be allowed to be assessed, in accordance with the provisions of the Act, & secondly, whether the appellants are entitled to the value of the building. On the first question, the learned counsel who appeared for the 10th defendant, who is a part-owner of the equity of redemption, and is also one of the holders of the decree passed by the lower court for redemption, has raised the objection, that the appellants, not having made a claim in this appeal for the value of improvements as against the mortgagors, but having restricted it as against the mortgagees only, though for the whole amount decreed, cannot now be permitted to claim the benefit of the Act; in other words, the decree of the court below has become final as against the mortgagors. Apart from the valuation of the subject matter of the appeal, there is nothing, which the appellants have done, to limit the scope of the appeal, and grounds 8 and 9 in the appeal memorandum are sufficiently wide to admit the present contention. The applicability of the Act was not disputed on any other ground; if so, before eviction can be ordered by a final decree to be passed, the appellants are entitled to be paid the value of improvements in accordance with the Act, see Kunjukrishnan v. Krishna Pillai, 1958 KLT 645 . The objection raised cannot stand. The case has to go back for a fresh assessment of the value of improvements for the plantations.