Varu vs Sankaran Namboodiri and Others

The 1st Defendant is the Appellant. The suit was to set aside Ext. I mortgage executed by Defendant 3 in favour of Defendant 1 and to recover possession of the plaint property with mesne profits on behalf of the Plaintiff''s ''Illom''. The trial Court found that Ext. I contravenes the provisions of Section 9, Cochin Nambudri Act (17 of 1114) and that it is not supported by necessity binding on the ''Illom''. It was, however, of the view that Defendant 1 has effected improvements in the property to the value of Rs. 961-0-10. Therefore a decree was given to the Plaintiff to recover possession of the plaint property with mesne profits at the rate of 20 ''paras'' of paddy per annum as prayed for in the plaint on payment of Rs. 961-0-10 to Defendant 1 towards the value of improvements.

Both the Plaintiff and Defendant 1 appealed from this decree in A.S. 244 of 1122 and A.S. 255 of 1122 respectively. The lower appellate Court while upholding the finding of the trial Court that Ext. I is not valid and binding on the ''Illom'', reversed the finding of that Court in regard to Defendant 1''s claim for value of improvements and allowed the Plaintiff to recover possession of the plaint property with mesne profits without payment of any amount towards value of improvements. Defendant 1 has, therefore, come in Second Appeal.

The Courts below have concurrently found that Ext. I is not valid and binding on the Plaintiff''s ''Illom''. Admittedly, Ext. I was executed by Defendant 3 only. He was not the ''karnavan'' though it is seen that he was in management of the ''Illom''. The ''karnavan'' is not a party to the document. Nor is there anything to show that the document has the written consent of the majority of the major members of the ''Illom''. The document, therefore, clearly contravenes the provisions of Section 9 of Act 17 of 1114. The evidence in the case also shows that it was not executed for any necessity binding on the ''Illom''. In these circumstances the document is not valid and binding on the ''Illom'' and it has been rightly set aside by the Courts below.

In regard to the question of Defendant 1''s right to get value of improvements, we are unable to agree with the views of the lower appellate Court. The improvements claimed are in respect of the reclamation and levelling up of the land and also in respect of the walls put up on two sides of the property. The property is a narrow stretch of paddy land lying adjacent to a public road. It is not denied that in order to ward off the cattle from trespassing into the field a strong fencing or a mud-wall is necessary. The Plaintiff''s case is that there was no need to erect permanent walls with stone and mortar. It is, therefore, contended that the walls in question cannot be considered as improvements for which the Plaintiff has to pay. The evidence shows that the walls put up have added to the value of the holding. The construction is consistent with the purpose for which the land was mortgaged, viz., cultivation of paddy.

The facts that the walls put up are more or less of a permanent nature and required an appreciable capital outlay would not make them any the less improvements as contemplated in the Cochin Tenancy Act, if the work adds to the value of the holding and is suitable to it and is consistent with the purpose for which the holding was mortgaged. The facts and circumstances of the case disclose that Defendant 1 effected improvements in the property believing in good faith that he was a mortgagee of the property. We are, therefore, inclined to agree with the view of the trial Court that the construction of the walls and the reclamation and levelling up of the land are improvements for which value has to be paid before Defendant 1 is evicted from the property. It is contended for the Respondent that the value fixed by the commissioner in his report is excessive. We have carefully gone through the report. We think that the commissioner''s estimate of both items of improvements is fair and proper and we do not find our way to reduce the amounts on any account. We are, therefore, of the view that Defendant 1 is entitled to Rs. 961-0-10 towards value of improvements.

The next question raised in appeal is in regard to mesne profits. The Appellant contends that he is entitled to hold the property till he is paid the value of improvements due and that the direction to pay past and future mesne profits is, therefore, wrong. The trial Court has decreed past and future mesne profits to the Plaintiff at the rate of 20 ''paras'' of paddy per annum. The right of the Plaintiff to get past and future mesne profits does not appear to have been challenged by the Appellant before the lower appellate Court. In para. 7 of his appeal memorandum he has questioned only the rate of mesne profits awarded by the trial Court. Even, before this Court in his appeal memorandum he has questioned only the rate of mesne profits and not the right of the Plaintiff to get mesne profits. In these circumstances we do not think that it is open to the Appellant now to disclaim altogether his liability for mesne profits past and future. Both the Courts below have found the mesne profits to be 20 ''paras'' of paddy per annum. We do not think that there is any ground to interfere with the concurrent findings of fact. We confirm the finding of the Courts below in respect of this matter.

Therefore, we allow the appeal to the extent indicated in para, 3 ''supra'' and in modification of the decree of the lower appellate Court we restore that of the trial Court. The Appellant will get one-half of his costs in this Court and in the lower appellate Court from the Plaintiff. The Plaintiff will suffer his costs in both the Courts. The direction of the trial Court regarding costs in that Court will stand.