KUNNATH MADAMPIL KUNJUNNI ALIAS 4TH NAIR AVERGAL Vs. MANNARGHAT RAMANUNNI ALIAS MOOPPIL NAYAR AVERGAL

JUDGEMENT

(1.) The plaintiff a Sthanee, granted a kanom of the properties in dispute for Rs. 71-6-11 to the 1st defendant in the year 1873--Exhibit D. In 1892 that kanom was renewed, the amount being fixed at Rs. 3,363-0-9. Exhibit A is the counterpart executed by the 1st defendant in that year. He assigned Exhibit A to the defendants 2 and 3. The present suit was brought for redemption. The main question related to the value of improvements. The Subordinate Judge awarded to the 2nd and 3rd defendants Rs. 19,009-3-7 which was increased by the District Judge in Appeal to Rs. 43,552 5-10. Both parties have preferred second appeals. We shall first deal with the plaintiff s appeal. In considering the questions argued before us the contention of Mr, Ananthakrishna Aiyar, who appeared for the tenant, that whatever may be the value of the second appeal, our powers are governed by Section 100 of the Code of Civil Procedure, has to be borne in mind.

(2.) Before dealing with the question of improvements, we may at once dispose of that portion of the appeal which complains against the finding that a portion of item 5 does not belong to the plaintiff. The learned Advocate-General while drawing our attention to certain flaws in the reasoning of the courts below rightly conceded that there is legal evidence to support the finding. We must therefore dismiss the second appeal with costs so far as this item is concerned.

(3.) The main contest centred upon the question whether the defendants are entitled to any compensation for improvements in respect of items 1 and 2. The Subordinate Judge very summarily disposed of this question on the ground that as items 1 and 2 were nilams and as there was no agreement in Exhibits A and B to pay compensation for them the defendants were not entitled to any. In appeal, the District Judge, although he dealt with the question more fully, has in our opinion, wrongly thrown the onus of proof upon the plaintiff. Ordinarily a tenant who claims compensation for improvements is bound to prove that he has improved the property and that he has spent money in making the improvements. Admittedly no account showing the amounts spent on the improvements has been produced. Mr. Ananthakrishna Aiyar contended that if the tenant can show that the income derivable from the demised property has increased since the date of the kanom, that would be enough to entitle the tenant to claim compensation for the improvements. It may be conceded that under the Malabar Compensation for Tenants Improvements Act the jenmi and the tenant are regarded as co-partners in respect of the additional value imparted to the land by the labour of or by. the expenditure of money by, the tenant. In this respect the Malabar tenant is placed in a more advantageous position than tenants elsewhere. Nevertheless, prima facie the tenant must prove certain things. Under Section 3 Clause 3 of Act I of 1900, improvement has been defined to be " any work or product of a work which adds to the value of the holding, is suitable to it, and consistent with the purpose for which the holding was let, mortgaged, or occupied." Consequently the tenant must show that he has done work which has added to the value of the holding, that the said work is suitable and that it is also consistent with the object with which he obtained the kanom. As regards the 1st of these requirements, there can be no doubt in this case. It is not suggested that the improvements made were not consistent with the kanom granted by the jenmi. The tenant has still to prove that an additional value has been imparted to the holding by his work and that the work which he executed was suitable to the holding. If we turn to Section 5, it is clear that the burden is upon the tenant to prove before he claims compensation that he has made the improvements or that his predecessor in interest has made them. The learned vakil for the tenant contended with reference to Section 5 that if there were improvements on the land the tenant in possession is enti led to their value at the time of ejectment, if any person other than the landlord had made the improvements. We are unable to agree with this contention. Clause (1) of Section 5 makes it clear that the tenant against whom the decree in ejectment is passed is only entitled to the improvements made either by himself or by his predecessor in interest. The definition of the word tenant in the apt is not against this view. If Thupran v. Mamad Kasim Suit (1912) 17 I.C. 433 holds otherwise we are unable to agree with it. In the present case there are very strong circumstances why the tenant should be called upon to establish his case. In Exhibit A, the counter part of the lease executed by the 1st defendant, he stated that "excepting items 1 and 2 which have been entered as nilams in the prior kanom deeds as the value of the reclamations of the properties which I have reclaimed at my expense in respect of the other schedule properties by converting them into double crop lands has not been now examined and estimated and settled you have agreed to give me etc." This Clause in the agreement suggests on the facts of it that the 1st defendant agreed in 1892 that he had made no improvements in respect of items 1 and 2. It may be that this presumption against him may be rebutted, and that he may be able to show that since that time improvements have been made by him. In that view, the evidence given by him will have to be examined to find out to what extent he has improved the properties and to what compensation he is entitled in consequence of those improvements The District Judge has not addressed himself to this question. He has not realised the importance of admissions contained in Exhibit A; the decision of the Judicial Committee in Chandra Kunwar v. Chandri Narpat Singh (1916) I.L.R. 29 A. 184. (P.C.) shows that the admissions of the parties should not be lightly ignored. It is true as pointed out by Mr. Ananthakrishna Aiyar that the word Nilam in Exhibit A does not necessarily show that it was a double crop land. It certainly means arable land. As to whether the 1st defendant has expended money and labour in converting it into double crop land, that is a matter which must depend upon the evidence given in the case. As we said before, Mr. Ananthakrishna Aiyar s suggestion that whoever might have improved the land, although he be a person between whom and the 1st defendant there is absolu:ely no connection, still he is entitled before ejectment to claim the value of the improvements, is one which we are unable to accept. Therefore, it was the duty of the 1st defendant to have adduced evidence to prove his case.