PATTUNGAL MOIDIN KUTTI MUSALIAR Vs. CPUMMAYTA UMMA

JUDGEMENT

(1.) The question raised in this second appeal relates to the amount of compensation that the defendant is entitled to for improvements. The defendant contended that at the time of the demise to him, the rights of the previous lessee, Asser, had vested in Kathiri Kutti under a sale held in execution of a decree which Kathiri Kutti had obtained against Asser. The plaintiffs, the lessors, reserved in the demise to the defendant only the rights of Kathiri Kutti under the mortgage obtained from Asser, and the lease was executed on the footing that Kathiri Kutti had only a mortgage right then. The defendant contended that a few days after the demise to him by the plaintiffs he purchased the rights of Kathiri Kutti, that is the rights possessed by Asser under the previous lease by the plaintiffs. The defendant claims to be entitled to receive compensation not only for trees planted by him after the demise but also for any improvements for which compensation would have been due to Kathiri Kutti. The lower Courts are wrong in holding that the defendant was entitled to have compensation only for trees planted by himself subsequent to the demise to him. The District Munsif held that the defendant should institute a fresh suit for any compensation payable to Kathiri Kutti to which, the defendant became entitled under the purchase from him. But in doing so he was clearly , wrong. Mr. Kunjunni Nair contends that the statement in the demise that certain grown-up trees belonged to the plaintiffs should not be taken to mean that no young trees belonged to them. It is unnecessary for us to consider what presumptions of fact may be drawn by a Court of fact from the fact mentioned in the demise. We request the District Judge to submit a revised finding on the third issue with reference to the above observations. The finding should be submitted within one month from date of receipt of this order by the lower Court and seven days will be allowed for filing objections.

(2.) In compliance with the order contained in the above judgment the District Judge submitted the following FINDING : I am ordered by the High Court in their order of Friday, the 5th January 1912, in Second Appeal No. 1591 of 1909, to record a finding on the 3rd issue in Original Suit No. 517 of 1907 on the file of the District Munsif of Telli-cherry which formed the subject of Appeal Suit No. 272 of 1908 on this Court s file. For the respondents it is urged that there is nothing to show what were the improvements effected by Asser and there is no evidence to show when he came into possession. He held under a Marupat of 1071 and at any rate he was in possession at that time.

(3.) I think that the appellant s Counsel rightly relies on Exhibit III as showing what the improvements were. I find that they are those given in the resume of the Commissioner s report as follows :