1. The original suit in this case was by a Malabar jenmi for redemption of a kanam and possession. The suit was decreed and the appellants, the defendants, have appealed on the ground that the amount awarded as compensation for improvements is too low. A point of preliminary nature has been taken and we had it argued before us without going into the merits as to the amount awarded. It is that the lower Court's procedure in the matter of the issue of a commission has been illegal and that the case will therefore have to go back for a proper procedure to be adopted.

2. The plaint was presented on 1st October 1917. About March 1918 the lower Court issued a commission consisting of two persons with general instructions to:

render proper accounts of the improvements said to have been effected by the defendants.

3. That commission sent in its report about August 1918. Both parties filed objections to it. On 10th September 1918 the plaintiff put in a petition supported by an affidavit praying for the issue of a second commission. That was opposed by the defendants' vakil. The defendants' prayer was that the first commission should be directed to amend its report. That was opposed by the plaintiff. On 2nd October 1918 the Court passed an order on the defendants' petition and directed the first commission to rectify the defects pointed out by him. On 8th October 1918 it issued a warrant to the first commission for that purpose, and on the same date it issued a separate order on the plaintiff's petition, directing the issue of a second commission as it thought that:

on the grounds sot forth in the plaintiff's affidavit the issue of a fresh commission was essential.

4. The second commission which was issued also to two persons also made a. report, to which both sides again had objections. The defendants in their turn on 26th April 1919 prayed for the appointment of a third commissioner. That application was granted on 28th July 1919 as it was represented that there was great divergence in the estimates of the two sets of commissioners. This commission, however, fell through as the defendants did not deposit the fees which were fixed at Rs. 600. When it came to write its judgment the lower Court appears to have regarded the reports of both commissions as evidence in the case, and in para. 22 of its judgment it says:

The question is which of the two sets of accounts has to be preferred.

and it decided in favour of the second set relying on a ruling in Thottamma v. Subramaniayyan A.I.R. 1922 Mad. 219, and for the reason that one of the commissioners in the second commission "is a very experienced vakil commissioner." Accordingly it has accepted and has embodied in its decree the valuation by the second commission.

5. We are of opinion that the lower Court has fundamentally misconceived its power and duties in the matter of these commissions. We are clear that the procedure, contemplated by the Code of Civil Procedure, is not the issue of a succession of commissions all covering the same ground the filing of a succession of reports all being treated alike as evidence, and the final sifting of them and selection by the Court of so much from this mass of matter as it thinks fit to adopt. The practice of the issue of a succession of commissions covering the same ground, (incidentally, at a ruinous expense to the parties), has been, we are aware, in vogue with Courts in Malabar for many years, but was condemned strongly by a Bench of this Court in Thottamma v. Subramaniayyan A.I.R. 1922 Mad. 219. It is no doubt a simple method by which the Court may evade coming to grips with the case and postpone the trial as long as possible, but we are satisfied that there is no justification for it in the Civil Procedure Code. The relevant provisions of the Code are Section 75, and Order 26. A commission to value improvements would come, we take it, under Section 75 (b) under the head of. "To make a local investigation." Therefore the relevant rules in Order 26, are Rules 9 and 10 and the general Rules 15 to 18. Now in the first place these rules do not seem to contemplate the issue of a commission to more persons than one and the issue of a commission to two persons appears to us therefore irregular and of doubtful legality. The practice has grown up apparently in order that each party may have a nominee on the commission, but that is most objectionable as encouraging a commissioner to regard himself as retained by a party instead of being an officer of the Court. Such a practice also opens the way for trouble when the two members hold differing opinions on any matter before them. We therefore regard both the commissions issued by the lower Court as improperly constituted. It is of course open to the Court to issue more than one separate commission in a suit allotting to each expert the investigation of the matters in which he is an expert; but the commissions must be separate and not combined into one, and the duties of each must be clearly and separately defined.

6. Next it was not open to the lower Court to run both commissions at the same time, both covering exactly the same ground. The rule is Rule 10(3) and lays down that further enquiry may be ordered when the Court is for any reason dissatisfied with the proceedings of the commission. It may be noted that there is here no provision corresponding to that in Rule 14(3) under which the Court may issue a new commission. What is contemplated under Rule 10 (3) obviously is a further enquiry by the commissioner already appointed or by the Court itself. It may be that where the Court is so dissatisfied with the whole proceedings of the commissioner that it thinks it better to discard the whole record and start afresh, such a procedure would not be contrary to the code. That is the line of argument adopted in Thottamma v. Subramaniayyan. It was taken for granted there that the Court regarded the work of the first and the second commissions as so bad that it had to be done over again. No doubt in that case both parties consented to the fresh commission and the respondent has contended here that in the present case the appointment of the second commission was virtually by consent. But that we cannot accept. The Judge's notes say definitely the defendant's vakil opposed the issue of the second commission and although there is a separate note dated the same date that the defendants object to paying the costs we do not infer from that that this was their only objection to the issue of the commission. The lower Court does not say that or that they did consent to the issue of a commission; it only says that both parties agreed to the personnel of the commission, a very different thing. The present case therefore is not one in which they consented to the issue of a second commission. Even if it were so, such consent will not validate the appointment. Only the decision of the Court that the work had been so badly done that it had to be done over again would avail to validate the issue of a second commission. There was no such decision in the present case because the Court was permitting the two commissions to go on pari passu and did not decide until it pronounced its judgment which of the two it preferred.

7. The proper procedure, to our minds in a case like the present would be before the issue of a commission at all, the defendants ought to be directed to set out clearly in detail with plans the improvements claimed, the reasons why they are claimed and the value claimed and the plaintiff should then be called on to make his rejoinder on those points. The Court must then judicially consider both the statements and then decide on what points, if any, it regards a commission as necessary and will then issue a commission with detailed instructions accordingly. When the commissioner returns his report the Judge must then and there hear the objections to it and decide on what points, if any, he wants further information and then ask the commissioner to supply that information. Only if he is of opinion after hearing both sides that the report is wholly useless is it open to him to discard it and issue a fresh commission to cover the same ground, and in that case the report of the first commission is as if it had never been and would not be evidence in the case.

8. Now the Subordinate Judge has not adopted this procedure. He issued the second commission not having heard the objections to the first on both sides, not deciding that the report was useless and not putting it on one side. He issued it merely after perusing the plaintiff's objections and accepting these as prima facie justification for the issue, and then carried on both commissions side by side, regarded both reports as evidence in the case and then chose in the end to prefer the latter. He even issued an order to appoint a third commission, whose report no doubt, would have been dealt with in the same way, and so on, ad infinitum. This procedure, besides being in our view contrary to law, creates considerable embarrassment to us here. If both reports are evidence, as the lower Court has treated them, it is open in argument at the Bar to contend that we should prefer the first and not the second; yet the objections to the first have never been properly heard and considered by the lower Court, so that we do not know on what grounds it regarded the first report as inferior to the second. It might be that after a full hearing we might prefer the earlier report, and if we strictly adopt the view of the law enunciated above, we must reject the second as not in accordance with law and we should therefore have to act on the first without having any discussion of it at all by the lower Court.

9. With great reluctance, therefore in view of the fact that the suit is now 10 years old, we are compelled to remand the case to the lower Court for a fresh award regarding the value of the improvements. It will have to take up the first commissioner's report now, consider it with the objections of both parties and decide on what points, if any, it is incomplete and require further elucidation, and then issue a fresh commission (a single commissioner) to supply that further information. The fresh finding on this award should be submitted within six weeks subject to any request by the lower Court for further time, and ten days will be allowed for objections.

10. We place on record the admission of the defendants in this Court that they have cut most of the trees except palmyras and they accept the award for trees other than palmyras. The parties agree that the award for building be fixed at Rs. 1,743. Another point has been argued before us as to the price which the Subordinate-Judge has adopted for paddy. Section 15, Act 1 of 1900, is the Government Notification nearest in date, to the date of the decree. The valuation of the plaint items 7,8, 14, 16 given by the first commission is not to be increased. It is agreed that there are no improvements in items 2, 10, and 11. Points on which the lower Court has come to a decision entirely independent of the reports of the commission are of course not affected by the order and will stand, subject to argument in the course of the appeal here. Valuations against which no appeal has been preferred here by plaintiff will of course also stand, subject to the result of defendants' appeal; Costs will abide the event. (After the findings of the lower Court were received, the case came up before Wallace and Thiruvenkatachariar JJ. and their Lordships delivered the following).

Subject: Properties Catch Words Mentioned IN JUDGMENT

11. This appeal is against the decision of the Subordinate Judge of Ottapalam in a suit by a Malabar jenmi and melchartdar for redemption and possession of the plaint properties from his kanomdars. Defendant 1 was the person most interested in the kanom. He has since died and his legal representative contests the appeal. The lower Court gave a preliminary decree for redemption in favour of plaintiff 2 on payment of a kanom amount of Rs. 14,251-14-1 less certain arrears of rent due. The appeal petition, which is by defendant 1, raised various grounds for discussion but the appeal has centred round the extent and value of the improvements. A memorandum of objections has been filed and argued by plaintiff 2.

12. When the appeal first came before us for hearing the appellant advanced an argument that the procedure of the lower Court in the matter of the issue of successive commissions to value the improvements was illegal. The suit was filed on 1st October 1917. In March 1918 the lower Court issued a commission which reported in August of that year. On 8th October it issued a second commission and even on 27th July 1919 issued orders for a third commission which, however, fell through. In his judgment the Sub Judge treated the reports of both the commissions as evidence and decided in favour of the second commission's figures, and his decree passed on 31st March 1923, was based on the latter report. We held in an interlocutory order dated 26th September 1927 that this procedure was illegal and that the report of the first commissioner must stand subject to any further information which the lower Court might desire and that the valuation for improvements must be based upon it. We remanded the case for findings on that basis. The findings have now been submitted. Both sides filed objections to it and have been heard and we shall now deal seriatim with the matters which are in controversy between the parties both in the appeal generally and on the findings.

13. The first point is whether palmyras ought to be valued as timber trees or fruit trees. The learned Judge has valued them as timber trees. Appellant argues that they ought to be regarded as fruit trees within the meaning of Section 4 (b), Malabar Compensation for Tenants' Improvements Act. In a judgment reported in Vellayappa Chetty v. Subramaniam Chettiar A.I.R. 1927 Mad. 137, to which one of us was a party it was pointed out how elastic the term " fruit " is, and it was there decided that the use of the phrase " fruit trees " in the definition of " improvements " in Section 3 (4), Madras Estates Land Act, will not include cocoanut trees in the district of Ramnad, since these are in that locality frequently planted as and in lieu of any other crop on the ground. This judgment perhaps is not of very much point as regards the proper classification of palmyras in Malabar, but the mention of cocoanuts, jack trees and pepper vine in several sections of the Act : see Section 15, (1), (2) and (3) and Section 18, seems to us some indication of what the legislature intended to regard as fruit trees under the present Act. It will be noted that palmyras are not mentioned in these sections. On the other hand palmyras are certainly used as timber and grown for their timber although they produce other useful products. The matter is entirely, so far as we know, res Integra but we can see no strong grounds for laying down generally that in Malabar palmyra trees are fruit trees within the meaning of this Act, and we are not prepared to differ from the lower Court in its finding on remand that they should be compensated for as timber trees, or other useful trees, compensation for which comes under Section 10. We therefore adopt the valuation of the first commissioners which has been adopted by the lower Court.

14. The next point is the valuation of paras of paddy. According to Section 15 of the Act the Court has to take into account the Local Government tables of prices. In his original judgment the Judge adopted the prices taken by the first commissioners from tables in force about the time of their report, which was in 1918, although his decree was passed much later, in 1923. Since the submission of the commissioners' report there have been two tables published one in July 1922 and one in June 1923 In our remand order we pointed out that the tables nearest in date to the date of the decree should be adopted. The lower Court has understood this to mean that it should adopt the rate published in June 1923 as being nearest in date to the decree although it was subsequent to it. It is argued for the respondent that it is wrong to adopt a table's figure which was not in existence on the date of the decree, that the lower Court itself could not (obviously have adopted it on the date it passed its decree, and that appellant cannot now have the rate fixed by this later tables any more than he could appeal against the rate fixed in the decree on the ground that subsequent to the decree the rate had altered in his favour. We think that this contention should prevail. We are here to decide what figure the lower Court should have embodied in its decree if on the date of it had followed our ruling, and undoubtedly the lower Court would have adopted the tables of July 1922, and, if it had, this Court could not and would not have interfered in appeal with that figure. One or two rulings of this High Court on this matter have been cited before us, for example, Kanjunni v. Raman Unni [1918] 35 M.L.J. 219 and Valuthemana v. Pathuma [1912] 17 I.C. 131. These merely lay down that if there has been a revaluation as provided for by Section 6 (3) of the Act, then the Court may consider figures given in tables subsequent to the decree. The conversion rate therefore is 15 edanglies per rupee: see para. 32 of the lower Court's finding and the valuation of improvements allowed hereafter will have to be converted at that figure.

15. In this connexion the appellant wants, so far as the conversion rate of paddy adopted in the lower Court's decree is concerned to re-open the valuation of items 7, 8, 14 and 16 against which he has not specifically appealed. We think that this should be allowed since, while the nature and extent of the reclamation allowed was not attacked, para. 53 of his appeal petition did raise the general question at what price paddy was to be valued in arriving at the valuation of all improvements.

16. Next is the question of reclamations. Those claimed are, generally, conversions from single crop land into double crop, of paramba into single crop or double crop, and the digging of a channel. These are-claimed to have been done in 21 different blocks or areas. A few arguments on the general evidence necessary to prove this kind of improvement and the onus of proof have been put forward and several rulings have been cited on these points, but these to our minds merely show that no definite standard can be laid down on these matters. The onus lies on the tenant first to show that he has in fact-made improvements as defined in Section 4 of the Act. It was held in a case in Kuncha Menon v. Vishnu [1915] 28 I.C. 389, that the mere proof that the net annual produce of the holding has increased during the tenure may in some cases be sufficient to justify an inference that improvements have been made by the tenant. In Kunjunni v. Raman Unni, it was held, and, if we can say so with respect, rightly held, that this statement of the law in 28 Indian Gases was on too broad lines; that is, that the mere increase of the net income is in itself not an improvement or a proof that there has been an improvement, but that there must be some evidence of actual improvement as defined by the Act. On the other hand, when an improvement has been effected during the tenure, for example, where what was single crop land is now double crop land, the presumption is that it was done by the tenant and the onus of proving that it was not so done is on the landlord : see Krishna Menon v. Unni Mamu A.I.R. 1925 Mad 1222.

17. One or two other general points fall to be considered. The general rate per kila for deepening land fixed by the first commissioners and adopted by the lower Court has not been attacked before us and. will be accepted. On the other hand the commissioners' general estimate of double crop as yielding three times the single crop is one which we cannot accept. It appears to us contrary to all experience. The usual proportion in other parts of the Presidency is that single crop is to double crop in the proportion of 5 to 3, and that is the approximate proportion given by P.W. 3 as to his own crops in this locality. Defendant 1 himself in his evidence gives the proportion as 10 to 8. Before the commissioners both parties seem to have agreed that the proportion is practically equal, although they disagree as to the estimates of the actual yield. On the whole we think it right to fix the proportion as equal; that is, the yield from double crop land of two crops will be twice the yield from single crop land of one crop, and when the yield from the single crop is not disputed then the yield from the double crop will be taken as double this amount. The commissioner's adoption of a double crop yield as eightfold the seed quantity is not attacked. A single crop yield will then be four times the seed quantity. It may be remarked at this stage that it is not denied that defendant 1 and his predecessors-in-title, have been tenants of most of the suit blocks for a continuous period of over 80 years. Certain local methods of measurements have to be mentioned in order to understand the discussion. The usual square measure used is a perukam which is square measurement of a six feet kole each way, that is 36 sq. ft. About 1210 of these perukams make one acre. " Seed para " another measure of area measures 100 perukams. Nilom is a general term used for cultivated land and paramba for uncultivated or timber land, and nathupotta is the usual term for seed bed.