U.N. Aliabba vs F.P.S. Albuquerque (deceased) and others

Krishnaswami Nayudu, J.—The second appeal and the memorandum of cross objections relate to The decree for compensation for

improvements directed to be paid by the plaintiff to the first defendant. The third defendant is the appellant. He is a purchaser of the tenant''s right

under Ex. B. 2 dated 25th March 1947 from the first defendant. The suit was for abetment against defendants 1 to 3, the first defendant being the

principal tenant, the second defendant being his under-lessee and the third defendant being the purchaser of the first defendant''s rights. Defendants

1 and 3 filed a joint written statement claiming a sum of Rs. 1,200 as the value of the improvements effected on the land by putting up buildings and

making other improvements. The trial Court fixed the compensation at Rs. 756 and directed the plaintiff to pay the first defendant the said amount

of compensation, In appeal, the third defendant, the present appellant, filed a memorandum of cross-objections claiming the value of the

improvements himself as he had purchased under Ex. B. 2 the rights of the first defendant as challenging tenant as also the right to claim the value of

the improvements from the landlord, the plaintiff. His objection was not countenanced on the ground that the claim for improvements was in the

nature of inchoate right. The learned appellate Judge felt it doubtful if it could be the subject-matter of a transfer and held that the proper remedy of

the third defendant was to proceed against the first defendant for the recovery of the value of the improvements on the strength of the sale deed,

Ex. B. 2 in his favor. The first defendant appearing by Counsel now contends that the third defendant would not be entitled to the value of the

improvements decreed in the present suit as the property that was sold to him was different from the suit property. Mr. Vittal Rao proceeded to

refer to some differences in the description of the property in Ex. B. 2 and the schedule to the decree which is a copy of the schedule to the plaint.

The question of identity of the properties was never in dispute and it is not open to the first defendant to raise that question- It is not necessary to

go into that question in the second appeal as the point has never been raised at any time in the Courts below. As regards the view taken by the

learned appellate Judge that it is an inchoate right and cannot be the subject matter of a transfer, I am unable to agree for the reason that the right,

which the third defendant claims by virtue of the transfer in his favor under Ex. B. 2 of the leasehold rights possessed by the first defendant as

challenging tenant and also of the value of the buildings put up by the first defendant on the land for which consideration must be presumed to have

passed from third defendant to the first defendant could not be considered to be in the nature of a mere claim or inchoate right just as a claim for

damages for tort. The right which the first defendant possessed as challenging tenant was a right to claim the value of the improvements of the

property by reason of his putting up additional buildings which are attached to the land and which in turn have been conveyed to the third

defendant. Such a right is a right annexed to the ownership of the land and the ownership of the buildings put up by the first defendant. Such a right

which is annexed to immoveable property is transferable and the third defendant has therefore acquired a right to claim the value of the

improvements by virtue of Ex. B. 2. Even otherwise on the averments in the written statement filed by defendants 1 and 3 it was not open to the

first defendant to deny the right of the third defendant to claim whatever amount which the first defendant might be entitled to get as the value of the

improvements from the plaintiff as challenging tenant. The result is the appeal is allowed with costs throughout as against the second respondent.

The memorandum of cross-objections is by the plaintiff who contests the correctness of the view taken by the lower Courts that the lessee of

the suit property was entitled to the value of the improvements. There was no whisper of any objection to the first defendant being entitled to

improvements in the trial Court. But in appeal a contention was raised that the customary law which applies to tenants in the Malabar whereby

tenants of agricultural lands are entitled to the value of improvements is not applicable to the suit property which is situate in South Kanara district.

But the learned Judge after referring to the decision in Venkataramanayya v. Srinivasa Rao 6 Mad 182 and Ramappa v. Abdulla Beary 41 M.L.J.

127 found that from the earliest times it has been held that challenging tenants from South Kanara are entitled to the value of the improvements. An

attempt was made to contest the position that the first defendant was not a challenging tenant and that the land which was leased was not an

agricultural land but was a building site. The land has been described as beget which means ''''garden land"" and therefore undoubtedly agricultural

and not, in any event, a building site. There is no point in this objection and the learned Subordinate judge has rightly repelled the contention of the

plaintiff. The memorandum of cross objections is dismissed with costs (one set). No leave.