JUDGMENT

1. S.A No. 1989 of 1915.

2. The plaintiffs, a Sthanee, granted a kanom of the properties in dispute for Rs. 71-6-11 to defendant 1 in the year 1873—Ex. D. In 1892 that kanom was renewed, the amount being fixed at Rs. 3,363-0-9. Ex. A is the counterpart executed by defendant 1 in that year. He assigned Ex. A to defendants 2 and 3. The present suit was brought for redemption. The main question related to the value of improvements. The Subordinate Judge awarded defendants 2 and 8 Rs. 19,009-3-7 which was increased by the District Judge in appeal to Rupees 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 CPC, has to be borne in mind. 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 No. 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. The main contest centered upon the question, whether the defendants are entitled to any compensation for improvements in respect of items Nos. 1 and 2. The Subordinate Judge very summarily disposed of this question on the ground that, as items Nos. 1 and 2 were nilams and as there was no agreement in Ex. 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 this 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 S. 3, Cl. 3 Act 1 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.”

3. 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.

4. It is not suggested that the improvements made were not consistent with the kahnm 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 S. 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 S. 5 that if there were improvements on the land the tenant in possession is entitled to their value at the time of ejectment, if any person other than the landlord had made the impiovements. We are unable to agree with this contention. Cl. (1) in S. 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 Act is not against this view. If Thupran v. Mahad Kasim(1) 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 Ex. A, the counterpart of the lease executed by defendant 1, he stated that:

“excepting items 1 and 2 which have been entered; as nilams in the prior kanom deeds, as the value of 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.”

5. This clause in the agreement suggestion the facts of it that defendant 1 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 realized the importance of admissions contained in Ex. A; the decision of the Judicial Committee in Chandra Kunwar v. Chaudhri Narpat Singh(2) 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 Ex. A does not necessarily show that it was a double crop land. It certainly means arable land. As to whether defendant 1 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 defendant 1 there is absolutely no connexion, 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 defendant 1 to have adduced evidence to prove his case.

6. There is another circumstance which also throws the burden upon defendant 1. In the written statement filed by him be stated that though in the demise of 1872 items 1 and 2 were entered as nilams, all such lands were left uncultivated, that same of the plaint lands were forest lands and were not frequented by people generally. Here again be seams to admit that a great portion of items 1 and 2 ware cultivable lands. Before the first Commissioner, the statements made by him show that he did not lay claim to having made considerable improvements upon these items. In Ex. 3-B be stated, as regards the major portion of item 1, that they were originally single crop lands and that they were dug and their feel lowered and converted into double crop lands. As regards the other portions he contended that some of them were re-chimed from item 5 and others from item 6. On the other hand, the plaintiff's kariasthan contended that all of them ware nilams. There seems to have been no suggestion before the Commissioner that the lands were waste and that they ware converted into single or double crop lands by the exertion of defendant 1. At regards item 2, the contention before Commissioner 1 tended to negative any suggestion shat a major portion of that item was reclaimed by the defendant and converted into double crop lands. Under these circumstances, it was the duty of defendant 1 to have adduced sufficient and char evidence to establish his right to compensation. The District Judge lays much stress upon the fact that the inane at the time of the demise was only 212, ½ paras of paddy, whereas in a suit brought by the plaintiff for use and occupation he estimated the income at almost 10 times that quantity. We dc not think that the increase in the income is any criterion of increased value having been imparted to the lands by the tenant. It has to be remembered in the first place that Komu Menon, defendant 1 was a confidential agent of the Sthanee and in all likelihood a favourable rent was fixed as against him by his master.

7. The increase in the net income might be due to a number of other circumstances. The decision in Thiruvatiyil Vattath Kunchu Menon…Defendant v. Vishnu Barathikal…Plaintiff .(3), was quoted as showing that if an increase in the income is proved, the presumption is that the tenant has improved the land. In our opinion the proposition has been too broadly stated. The District Judge has drawn attention Exs. 293 and 296 as showing that some improvements were made in a portion of item No. 1. In the first place, we are not satisfied that A is really a portion of item No. 1. Even granting for argument's sake that it a so, it does not follow that because on a portion of item No. 1 some improvements were made, that is any indication that the whole of that property has similarly been improved. A is less than 2 acres in extent. One other circumstance we must mention before passing away from items Nos. 1 and 2 and it is this the Commissioners who inspected the place and submitted their report have not given any relevant evidence in the case. There seems to be an impression in Malabar that a report of the Commissioner is equivalent to a judgment which is binding upon the parties. Ordinarily the Commissioner's report should be supplemented by the evidence which he gives in the case. In the present instance, the Commissioner only embodies the statements made by the parties and does not give his own opinion on their contentions. Consequently it is practically of no use. On the whole, we have come to the conclusion that the procedure adopted by the District Judge in throwing the onus upon the plaintiff, in not taking into account the admissions contained in Ex. A, in attaching artificial importance to the increase in the net income and in not considering the statements made before the first Commissioner vitiate the judgment altogether. We have therefore resolved to set aside his judgment in so far as it awards compensation for items Nos. 1 and 2 and to remand the appeal to him for fresh disposal. He will be at liberty to examine the Commissioners who have sent in their reports, with a view to ascertain whether any improvements were made by defendant 1; he can also consider any other evidence on the record to which his attention may be drawn by the parties on this question.

8. As regards item No. 3, we must dismiss the appeal with costs. There is no evidence connecting this item with the decree. Ex. 252, nor is there any evidence that compensation was estimated by the decree or concluded by a contract between the parties. As regards items Nos. 4, 5 and 6, the Subordinate Judge fixed a particular sum as the amount of compensation payable to the tenant. The District Judge in appeal relied upon a notification published by the Government in February 1910 regarding valuation. It is true that the decree in ejectment was passed in December 1909. Strictly speaking, the notification of the Government is not evidence of the value of paddy in December 1909. But there can be no question that before the notification was issued inquiries must have been instituted, and having regard to the nearness of time, we see no reason to differ from the conclusion of the District Judge that the value of paddy in December 1909 was the same as that contained in the notification of the Government in February 1910. We must dismiss the appeal so far as these items are concerned with costs.

9. As regards items Nos. 7 and 8, the position is this: prior to 1872, one Muneappa was the tenant of the Jenmi in respect of these items. After the defendant 1, obtained the decree, he and the Jenmi sued Muneappa for redemption in 1882. A decree was passed directing the plaintiffs to pay Muneappa Rs. 3,000 odd. At the time of the renewal in 1892, defendant 1, was asked to pay this sum to Muneappa and to tack on that amount to his mortgage. The learned Advocate-General contended that this contract comes within the proviso to S. 19, Act 1 of 1900, as the amount due was settled by a contract in writing and registered. Mr. Ananthakrishna Aiyar, on the other hand argued that it is S. 7 of the Act of 1887 that applies to the contract. It is not necessary to decide whether S. 19, Act 1 of 1900 is not really retrospective and consequently as the improvements were claimed under the new Act, whether the question should not be decided with reference to that section. Even granting that S. 7 of the Act of 1887 applies, we are unable to hold that the settlement as to compensation come to in 1892 is not binding on the parties. That contract does not take away or limit the right of a tenant. It only settles the amount due under the mortgage at the time of the renewal. We therefore fail to see how this provision is obnoxious to S. 7. Further we are clear that section deals only with contracts which limit the right of the tenant to make improvements after the date of the contract. Of course, we are bound by the decision of the Full Bench in Kunhalloor Puthia Veeiil Rayarappa Atioti v. Vathukoilath Parkum Punnisseri Kelappa Kurup(4) to read the word “and” as meaning “or” Even in that view what the legislature prohibits the tenant from binding himself by are (a) contracts not to make any improvements, and (b) contracts settling the amount of the possible improvements in advance. The intention was not to prejudice the rights of the tenants by an a prior agreement without referee to the rights that may come into existence by the tenants working the property in a husband like manner. To this exception was added by the Act of 1900 by S. 19, which enabled the parties to settle the amount for compensation by a document in writing and registered. The learned vakil for the respondent drew our attention to Uthunganakath Avuthala v. Thazhatharayil(5). The two learned Judges who composed that Bench took two different views of S. 7. Subramania Aiyar, J., held that all contracts whether it related to improvemerts effected before the date of the contract or after, were within the mischief of the section. Davies, J., held that all improvements which were effected after January 1886 were within the section whether they were before or after the contract. With all deference we the unable to agree with either view. We are not at liberty, as Subramatia Aiyar, J. did, to embark upon a conjecture as to the policy of the legislature where the language of the section is plain and unambiguous. Prima facie, every person is entitled to enter into a contract settling the accounts between him and another, or for settling the differences between them. If this right of the freedom of contract is to be taken away it must be by express and clear words; and we find nothing in S. 7, which tales away the effect of a settlement as to compensation for improvements effected before the date of the contract. As regards the view taken by Davies, J., we do not find any words in the section to justify the interpretation placed by the learned Judge.

10. We must therefore reverse the decree of the District Judge as regards the compensation payable for these items. If any new improvements were made since 1892 or if the tenant has done anything to guard maintain or improve the improvements existing on that date, he will be entitled to compensation in respect of them. Otherwise the tenant is only entitled to the amount mentioned in Ex. A. The District Judge must now assess any fresh compensation that may be claimed in the light of the above observations. This must be done by the evidence on the record. Costs to be provided for in the revised decree.

In S.A No. 1884 of 1910.

11. In this second appeal Mr. Ananthakrishna Aiyar argued that the valuation given by the appellate Court should be re-considered on three grounds:

(a) In the first place, he argued that the valuation of the paddy at the time when the second Commissioner sent in his report should be taken into account. We do not think the order appointing the second Commissioner to assess the compensation should be regarded as a direction for re-valuation. That is a technical term and should be confined to cases mentioned in Cl. (3), S. 6. Where a Commissioner has ignored the evidence and sent in a report based on guess work the direction to a new Commissioner to do that work properly is not a direction to re-value. Consequently the second Commissioner could only take into account the value prevalent when the first Commissioner made his report. The language of S. 6 renders this clear. The decision in Velethemana v. Pathuma(6) also support this view. See also Kunhammad Kutti v. Panohara Allemea(7). The District Judge is therefore right on this question, (b) The second complaint is that the District Judge is wrong in regarding the supplemental report of the Commissioner as unauthorized. It is clear from the orders to which our attention was drawn that a fresh report was called for. The District Judge is bound to apply his mind to that report, (c) The third contention is also well founded. At the time of the renewed demise, the Jenmi was under a contract to supply water to the tenant at a fixed rate. On the faith of the contract, the defendant reclaimed the land in such a way as to make it capable of receiving the water. If the contract had not existed, he might have improved the land in some other manner. Consequently we think that under S. 9(1) the tenant's improvement has “caused an increase in the value of the net produce of the holding.” The contention of the learned Advocate-General that, as no second crop could have been cultivated in most of the lands if the Jenmi's water was not utilized and that therefore the tenant must be deemed not to have contributed to the increase in the income, does not do justice to the language of the section. In estimating the net produce, the explanation to S. 9 shows that the tax payable for the water may be deducted as a cost of the cultivation. The method by which the income was estimated on the basis that no water was supplied is wrong.

12. We must set aside the decree of the District Judge and remand the appeal for disposal to him in the light of the above observations. No fresh evidence. Costs to aside.

S.N/R.K

13. Appeals allowed.