1. The questions involved in this appeal arise out of the operation of Section 9 of the Malabar Compensation for Tenants' Improvements Act, 1900.
2. The first point taken before us was that the District Judge has erred in assessing the amount of the compensation payable for the lands marked A to I series in the Commissioner's plan and that this error arose from his erroneous finding as to the genuineness of Exhibit XXIX. The judge has considered all the reasons for and against the genuineness of Exhibit XXIX in paragraph 2 of his judgment and though all his reasons may not commend themselves to us we cannot reconsider his finding of fact, as we are unable to say that there were no grounds on which he could have come to the conclusion that Exhibit XXIX was not genuine.
3. We consider ourselves bound by the finding that Exhibit XXIX was not genuine and cannot reconsider it.
4. Next it was argued for the appellant that the Judge has not approached the question of the valuation of the improvements on the said lands in the manner required by Section 9 of the Malabar Compensation for Tenants' Improvements Act. We agree with this contention. Though the Judge has carefully considered the evidence, we see great difficulty in extracting any finding out of the learned Judge's consideration of this question in paragraph 2 of his judgment and must ask him to return findings on the following questions:—
(1) Whether the appellant or his predecessors-in-title have effected any improvements on the lands A to I series?
(2) If the first question is answered in the affirmative, then what compensation is due to the appellant for the improvements effected by the appellant or his predecessors-in-title?
5. We wish to draw the attention of the learned Judge to the terms of S. 9. In doing so we desire to point out that in a case like the present, where the mortgagee has been in occupation since 1845, if it is shown that the value of the net annual produce of the holding has in fact increased since the mortgagee came into possession, it may be inferred that the increase is owing to such works or products of works as are referred to in S. 3(3) and S. 4 of the Act, unless it appears that the increase in the value of the produce is referable to some other cause. The inference need not necessarily be drawn in every case, but there may be cases where it would not be proper to insist on the tenant proving definitely the exact time when the improvements were made.
6. The third point taken before us on behalf of the appellant was that there is no proper finding on the question, what compensation the appellant is entitled to receive in respect of the lands L and P. series. This question is dealt with by the learned District Judge in paragraph 3 of his judgment. His finding might, it is true, have been more explicit and might have had more direct reference to the point actually arising for decision, viz., what the present yield of the lands is. We are unable to say, however, that he has not found as a fact that the present produce of the land is the same as it was at the time of Exhibit XIV. We will, therefore, accept that finding.
7. There are cross-objections against the District Judge's decision. One of these refers to the compensation for the timber trees allowed under S. 10 of the Act. It is argued that by the terms of Exhibit A the appellant is prevented from claiming any compensation and that Exhibit A is not precluded from having operation with reference to the timber trees by reason of S. 19 of the Act, as S. 19 refers to making improvements and it cannot be said that the improvement caused by the spontaneous growth of trees is made by the tenant. It is unnecessary to express any opinion as to the suggested construction of S. 19, as we are of opinion that Exhibit A must be construed as offering no restriction to the right to claim compensation in respect of timber trees. The words of Exhibit A relied upon by the respondent when they are read with the preceding portions of Exhibit A, seem to us to mean that the provisions about the compensation for improvements contained in Exhibit A shall not apply to trees. There is no agreement that trees shall not be compensated for at all.
8. Next it is contended that the compensation of 250 fanams referred to in paragraph 3 of the District Judge's judgment ought to be disallowed, as it refers to improvements on lands already fully compensated for by the decree. It is argued on the other hand that these 250 fanams were allowed in respect of improvements on items J and K in respect of which no other compensation is allowed. We are unable to say whether it is so and we will ask for a finding on the following question:—
(3) In respect of what lands is the compensation of 250 fanams referred to in the District Judge's judgment, paragraph 3, allowed?
9. The findings should be submitted within six weeks from the re-opening of the District Court after recess: ten days will be allowed for filing objections.
[In compliance with the order contained in the above judgment the District Judge of South Malabar submitted a negative finding on the first issue and on the third issue found that the compensation of 250 fanams is allowed for the lands A to I series.
10. This second appeal and the respondent's memorandum of objections coming on for final hearing after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following]
JUDGMENT
11. We accept, the findings and dismiss the second appeal and the memorandum of objections with costs. Time for redemption is extended to six months from this date.
S.N/R.K
12. Appeal and Memo, of objections dismissed.