Pathumma Umma and Others vs Aliyammakkanakath Mohideen (dead) and Others

Srinivasa Ayyangar, J.—In this second appeal the defendants, against whom a decree for ejectment has been made have appealed to this

Court against the refusal of the lower appellate Court to grant to them the value of certain improvements consisting in the construction of a pucca

building on the site in-question.

A preliminary objection to the appeal has been taken on behalf ''of the respondents on the ground that the proper Court-fee has not been paid in

respect of the appeal. The appellants have paid the same Court-fee in the second appeal as was paid in respect of the plaint by the plaintiff-

respondent. The contention has been advanced that though in a suit for possession the Court-fee payable on a plaint may be as prescribed in a.

particular manner by the Court-fees Act, still when the appeal is by the defendant, and when the claim by the defendant on appeal has reference to

the compensation claimed by him but refused to be granted,, the valuation of the appeal should logically be the value the defendants seek to

recover from the plaintiff and that therefore the proper Court-fee should be paid thereon.

In the trial Court before the District Munsif the decree in favour of the plain-tiff included a condition that the plaintiff should pay the defendants

as and for improvements a sum of Rs. 2,053. This condition in the decree was on appeal deleted by the learned Subordinate Judge. The provision

in the Court-fees Act is. that in respect of a memorandum of appeal in such a case the Court-fee payable is ad valorem on the amount or value of

the subject-matter in dispute. The true logical position then is that, if the subject-matter in dispute in appeal has reference merely to the value of the

improvements, then the value thereof should be taken to be the value for purposes of appeal and Court-fee should be paid thereon. But it has been

contended by the learned vakil for the appellants that the appeal is not merely in respect of compensation but has reference also to the title of the

plaintiff-respondent and that the compensation is merely claimed as a condition precedent to the plaintiffs seeking to enforce their right to eject. If it

is a mere condition precedent, it follows logically that the subject-matter in dispute should be regarded only as the right to possession of the

plaintiff. In the memorandum of appeal before us there are grounds taken as regards the title of the plaintiff. It cannot be regarded as a

memorandum merely confined to the amount of compensation. Even if it were so, if it was sought to be enforced merely as a condition precedent

to a right to possession, the subject-matter in dispute would still be only the claim for possession. Though there is considerable force in the

contention of the respondents that the subject-matter in dispute has reference only to the amount of compensation and that the question of title

raised is a mere camouflage for escaping liability for Court-fees, we are not prepared to say that especially in the case of an enactment for revenue

purposes such as the Court-fees Act, it is not open to parties to avail themselves [of any camouflage that the law allows or does not forbid. We are

not prepared to say that it is open to a Court in such circumstances to neglect the actual form of the appeal and determine the question of Court-

fees having regard to what may be said to be the substance of the claim.

Further, as regards this question, the decision in Reference under Court-fees Act, Section 5 (1), is a direct authority in favour of the contention

of the appellants. Though in that case the learned Judges held that, even in a case where the only question raised is as to value of the

improvements, the appellants should not be called upon to pay any fee other than that payable in a suit for possession of land, still that observation

must be regarded as made subject to the indication that the compensation is claimed as merely incidental to the decree for possession.

The decision in the case of Sekharan Nair (dead) and Others Vs. Kongot Eacharan Nair and Others, is also a direct authority in favour of the

appellants'' contention.

To the same effect is the judgment of Krishnan, J in Seethayamma In Re: G.B. Seethayamma, . See also Kannan Nair v. Kodoth Kammaran

Nair [1914] 1 M.L.W. 102.

No doubt Kumaraswami Sastriar, J., in the case of In re Porkodi Achi"" AIR 1922 Mad. 211 has, after an examination of the whole of the case-

law on the point, decided that in that particular case the memorandum of objection should be stamped on the amount which the respondent was

directed to pay and which she was seeking to escape liability from

Though in the case of In Re: (Tiruvangalath Nellyoton) Paidal Nayar and Others, , the decision was that the appeal in that ease should be valued

on the amount of improvements, still the learned Judges, Phillips and Ramesam, JJ., held that in a case where the claim for improvements is

incidental to a decree for possession, the Court fee payable may be as in a suit for possession, and the learned Judges, even while referring to the

said case'' of Sekharan Nair (dead) and Others Vs. Kongot Eacharan Nair and Others, tried to distinguish the case on the ground that the right to

redeem was in issue there. Thus the decision of this Court in the case of Sekharan Nair (dead) and Others Vs. Kongot Eacharan Nair and Others,

has stood as good law and has not been overruled or effectively dissented from during all these years.

Our attention has been drawn to an order in an unreported case Second Appeal No. 1266 of 1924 where I held in a similar case that the stamp

payable on'' appeal when the appeal relates to the value of improvements alone should be ad valorem and not as in a suit for possession. But that

order was made without full argument and merely following the decision of Kumaraswami Sastriar, J., in the case already referred to and without

advertence further to the decision in the case of Sekharan Nair (dead) and Others Vs. Kongot Eacharan Nair and Others, . I am satisfied that my

order in the said case was not right.

Having regard to the observations already made we feel bound to adhere to the principle of that decision and hold in this case that the

objection to the amount of Court-fee paid on appeal cannot be sustained.

The preliminary objection thus being overruled, the next question is whether the lower appellate Court was wrong in its decision that the

defendants-appellants were not such tenants as were entitled to an order for compensation in their favour.

The finding of the lower appellate Court is that the defendants were not even lessees but only licensees. We have not been satisfied that this

finding is wrong either in fact or in law. There is also the further fact that, even if the defendants should be regarded as tenants, they were not

agricultural tenants and they could only be regarded as tenants of a building. It is taking advantage of their being placed in occupation of the

building that they appear to have put up substantial structures in respect of which they are now claiming compensation.

Having regard to these findings it is unnecessary to discuss the matter at any great length. The learned Counsel for the respondents has also

drawn my attention to the decision in ""the case of Kottayi Chathukutty Vs. Changanatha Parkum Thottathil Kunhappan and Another, by Jackson,

J. It has been held in that ease that the Malabar Tenants ''Improvements Act applies only to agricultural holdings and to building sites. In these

circumstances, we are not satisfied in this respect that the judgment of the learned Subordinate Judge who was himself a gentleman of the West

Coast, was wrong. The second appeal is therefore dismissal with costs. The lower appellate Court in this case gave some time to the defendants

appellants to remove the superstructure put up by them. On account of this appeal apparently nothing has been done. The defendants still have

three months from this date within which to remove the superstructure placed by them on the land. They ''should therefore within the expiry of three

months from this date deliver up to the plaintiff possession of the suit property. which they were allowed to occupy by the plaintiff, in the same

condition in which it was at the time when they were let into possession.

Reilly, J.

In this case the defendants who appeal have disputed the right of the plaintiff to recover possession of the land in question; but their main

contention and the only one which has been argued be fore us, is that they are entitled to the compensation for improvements awarded to them by

the District Munsif but disallowed by the Subordinate Judge. They have paid Court-fee, as did the plaintiff originally, only on the subject matter of

the suit other than the compensation for improvements. A preliminary objection has been raised before us for the plaintiffs that the appellants must

pay Court-fee hare also on the compensation for improvements which they claim.

In 1899 this question was dealt with by a Bench of this Court in Reference under Court fees Act, Section 5 [1900] 23 Mad. 84, a case from

South Kanara, There the plaintiff sued for ejectment, and defendant 2 set up title in herself and also claimed Rs. 500 as compensation for

improvements; a decree was made for the plaintiff in the trial Court, the claim in respect of improvements being disallowed; defendant 2 then

appealed to the District Court, again raising both the question of title and her claim for compensation for improvements. The District Judge referred

the question what Court; fee defendant 2 should be required to pay to this Court, and Subramania Ayyar and Boddam JJ. decided that she need

pay Court fee only as on a suit for possession on the ground that the claim for compensation for improvements was only incidental. As an obiter

dictum they expressed the opinion that

even where the only question raised is as to the value of the improvements the appellant should not be called upon to pay any fee other than that

payable in a suit for the possession of land

Ten years later, in 1909, a somewhat similar question came before Munro and Abdur Rahim, JJ., in Sekharan Nair (dead) and Others Vs.

Kongot Eacharan Nair and Others, , a Malabar case That was a suit to redeem a kanam. It was dismissed by the District Munsif; but on appeal

the Subordinate Judge made a decree for redemption on payment of the kanam amount and compensation for improvements. The defendants

appealed: to this Court, disputing the right to redeem and also claiming more for improvements than had been allowed by the Subordinate Judge

but paid Court-fee only on the amount of the kanam. It was held that for the purpose of Court-fee the subject-matter of the appeal was the right of

redemption and Court fee need be paid only on the amount of the kanam. In connexion with that case, however, it must be noticed that the method

of calculating the Court-fee on a suit for redemption is explicitly provided for in Section 7 (ix), Court fees Act But in Reference under Court-fees

Act of 1870, [1906] 29 Mad. 367 it had already been decided that in an appeal in a redemption suit, where the question in dispute was no longer

the right to redeem but only the amount to be paid for redemption, Court-fee need be paid only on the latter amount. In 1921 in In re Porkodi

Achi AIR 1922 Mad. 211 Kumaraswami Sastriar, J., sitting alone had to deal with a case in which a plaintiff, having obtained a decree as

reversioner to her father''s estate for the recovery of land alienated by her mother while a widow, appealed against the amount which she was

ordered to pay to the alienees. The learned Judge decided in that case that the plaintiff must pay for her appeal an ad valorem fee on the amount

which she had been ordered to pay and for which she disputed her liability. Incidentally he expressed his disagreement with the decision in

Reference under Court-fees Act, Section 5, (1). Two years ago, in a Malabar case, In Re: (Tiruvangalath Nellyoton) Paidal Nayar and Others, ,

where a plaintiff who got a decree for the redemption of a kanam, appealed against the amount which he had been ordered to pay as

compensation for improvements, Phillips and Ramesam, JJ., decided that he must pay Court-fee on the amount of compensation which he

disputed. The effect of these cases is that the obiter dictum in Reference under Court-fees Act, Section 5(1).

even where the only question raised is as to the value of the improvements the appellant should not be called upon to pay any fee other than that

payable in a suit for possession of land

has not been adopted in later cases. But the actual decision in Reference under Court-fees Act Section (5) (1), that a defendant disputing on

appeal both the plaintiff''s title to recover and the amount of compensation to be awarded need pay Court-fee only as on a suit for recovery of

possession, has never been overruled. It is not clear to me whether in In re Porkodi Achi AIR 1922 Mad. 211, Kumaraswami Sastriar, J.,

intended to express his dissent both from the obiter dictum and from the actual decision in Reference under Court-fees Act Section 5 (1). If the

latter was his intention, his opinion was itself an obiter dictum. S.A. 1266 of 24, in which my learned brother himself came to a decision contrary to

that in Reference under Court-fees Act, Section 5 [1900] 23 Mad. 84 he has dealt with in the judgment just pronounced. If I may say so with

respect, it is not difficult to find arguments against the decision in Reference under Court-fees Act, Section 5 [1900] 23 Mad. 84. But that decision

has stood for nearly 30 years and has been followed in almost innumerable cases in Malabar and in this Court. I agree that we must continue to

follow it. I do not think it necessary, nor in my opinion would it be proper in a fiscal matter of this sort, to refer the question, as has been suggested,

to a Full Bench at this date. I agree� that the preliminary objection must be overruled.

On the question whether the defendants are entitled to any compensation in this case I do not think it necessary to decide whether a tenant-at-

will not liable to pay rent is, as Mr. Sitarama Rao contends a tenant within the meaning of that word as used in the Malabar Compensation for

Tenants'' Improvements Act. On consideration I am inclined to agree with Mr. Sitarama Rao''s contention that the'' defendants were tenants-at-will

of the hut ""entrusted"" to them by the plaintiff, of which they appear to have been in exclusive possession. But of any part of the paramba beyond

the site actually covered by the hut, the learned Subordinate Judge has found that they were no more than licensees. Even though there is evidence

that the defendants put up a cadjan fence round part of the paramba adjoining the but, it was open to the Subordinate Judge to find that, though

allowed to use the enclosed part of the paramba, the defendants had no exclusive possession of it His finding of fact is that it was only the hut

which was ""entrusted"" to the defendants. The evidence clearly shows that the new house which the defendants have-built covers a considerably

larger area than the site of the hut. Even if they ware tenants of the hut, they were not tenants of the area outside the site of the hut, which they have

now covered with their new house; nor can it be reasonably suggested that in good faith they believed themselves to be tenants of that area. It has

not been suggested before us that the part of the house which is on the site of the old hut has bean constructed in such a way that it could stand, if

separated, from the part which extends beyond the site of the hut. I agree therefore that the house is not a tenant''s-improvement for which the

defendants can claim compensation. This result, it may be remarked, cannot be regarded as harsh towards the defendants as it appears that they

built the house hurriedly in spite of the protests the plaintiff, who was an old mart while his sons were temporarily absent. I may add that I do not

wish on this occasion to express any opinion on the question whether the Malabar Compensation for Tenants Improvements Act applies only to

agricultural holdings and kudiyiruppus, as held by Jackson, J., in Kottayi Chathukutty Vs. Changanatha Parkum Thottathil Kunhappan and

Another, .

I agree that this appeal should be dismissed with costs, but that the defendants should have three months from this date for removing the

materials of the new house.