Kumara Pillai, J.
1. This appeal raises the question of apportionment, between a landlord and his kanom tenants, of the compensation amount awarded in a Land Acquisition Case. The appeal is filed by the landlord, who was respondent 1 in the lower court, and the kanom tenants who were respondents 2 and 3 in that court have filed at memorandum of objections to the lower court's decree. Respondent 4 in the lower court was a mortgagee of respondents 2 and 3. The property acquired consisted of double crop wet lands, single crop wet lands, dry unoccupied lands, dry occupied lands, garden lands, and trees and tanks in them.
The total amount awarded as compensation 19 stated in paragraph 1 of the judgment of the lower court to be Rs. 14,960-5-1. According to the statements in paragraphs 8 to 10 of the lower court's judgment, of this amount, Rs. 10,164 form the value of the land, Rs. 83-4-0 the value of the trees, and Rs. 3,188-6-5 the cost of the tajiks. The solatium is stated in paragraphs 8 and 9 of the lower court's judgment to be Rs. 1,524-9-10. The lower court directed that 40 per cent of the land value of Rs. 10,164 with 50 per cent of the solatium should be paid to the landlord and 60 per cent of the land value with 50 per cent of the solatium and the whole amount of Rs. 83-4-0 being the value of the trees, should be paid to the tenants.
The cost of the tanks, Rs. 3,188-6-5, was directed to lie in court till such time as either the jenmi or the kanomdars filed a suit for determination of the question as to who effected that improvement. In the appeal, the jenmi contends that the amount awarded to him by the lower court is too low and that the kanomdars should have awarded only the proportionate kanom amount and the value of the trees.
2. This case was heard along with A. S. No. 793 of 1954 (M) in which also the question of apportionment of the compensation amount between the landlord and the tenant had come up for consideration. In paragraph 15 of the judgment in that case we have held as follows :
'On the question of apportionment, our conclusion, therefore, is that, in case of tenancies governed by the Malabar Tenancy Act, where there is no satisfactory evidence as regards the market value of the interests of the tenant and the landlord, the compensation amount-should be apportioned on the following basis, namely:
(1) If the tenant has constructed any building, made any well or tank, or put up permanent protective works, such as bunds, culverts, etc., he alone-will be entitled to the value of such improvements;
(2) If there are any trees or other improvements reserved under the contract of tenancy to the jenmi exclusively or any trees or plants in respect of which he has the rights mentioned in Section 56 (3) of the Malabar Tenancy Act the value of such trees, plants and improvements should be given to the jenmi;
(3) If the jenmi was working any quarries by virtue of the right under Section 56(2) of the Malabar Tenancy Act and if separate compensation has been awarded for the same not merely on the basis of land value, the amount awarded in respect of them should also be given to the jenmi;
(4) Subject to the above special rights the entire compensation amount including any amount awarded in respect of trees and plants planted by the kanomdar after the kanom demise should be divided between the jenmi and the tenant in the proportion of what they were deriving from the entire kanom holding of which the acquired property formed a part -- the annual rent which the jenmi was entitled to get under the provisions of the Malabar Tenancy Act at the time or the acquisition being treated as that the jenmi was deriving from the property; and the gross income of the property less the expenses of cultivation, cost of maintenance of the property, Government kist, and dues, payable to the jenmi being treated as what the kanomdar was getting from the property;
(5) If there was any tank in the property which was dug before the kanom was granted and which was included in the kanom and given to the kanomdar along with the rest of the kanom holding such tank also should be treated as part of the kanom holding, and the compensation amount awarded in respect of it should be apportioned between the jenmi and the kanomdar in the same proportion as the compensation amount awarded for the rest of the kanom holding; and
(6) The right to the solatium follows the right to the compensation amount, and the share of the Solatium which the jenmi and the kanomdar are each entitled to get should be proportionate to the share he gets out of the entire compensation amount, i. e., each of them is entitled to get as solatium 15 per cent of the compensation he is found entitled to.
Since there is no evidence in this case on the matters relevant for the apportionment of the compensation amount in accordance with the rules we have indicated above, the case has to be sent back to the lower court for a fresh disposal in the light of observations made above and after giving the parties another opportunity to adduce evidence. We have also to observe that the lower court was not right in directing the parties to have their rights in regard to the compensation amount for the tanks decided in a fresh suit.
The case was referred to the lower court for the purpose of apportioning the compensation amount, and since the apportionment cannot be made without deciding when the tanks were dug and by whom, it was duty of the lower court to have taken evidence and recorded a finding on that question also and apportioned the compensation amount in accordance with that finding. If the tanks were dug by the kanomdars after the kanom demise they would be entitled to the whole compensation amount in respect of the tanks.
3. In the result, the decree of the lower court re set aside and the case is remanded to the lower court for a fresh disposal according to law and in the light of the observations made above after giving both parties another opportunity to adduce evidence. Parties will bear their respective costs incurred till now except the court fee paid on thememorandum of appeal and the memorandum ofobjections which will be refunded to their respective counsel.