Govinda Menon, J.
1. The question involved in these three appeals is as to the apportionment between the appellants-tenants and the respondent jenmi of the compensation amount awarded in three land acquisition cases. The learned Subordinate Judge of palghat to whom the reference was made under Section 31(2) of the Land Acquisition Act held that 40 per cent of the compensation amount should be awarded to the jenmi and 60 per cent should be awarded to the kanomdar. The tenants have come up in appeal and the appeals have been referred to the Full Bench for a final and authoritative decision as to what is the basis of distribution of the compensation amount between the landlord on the one hand and the occupancy-tenants on the other.
2. The appellants contended that in these cases the entire compensation value as also the solatium should have been awarded in their favour as they are not tenants, but have become full owners of the properties, and the respondent is not entitled to get any michavaram. It is also stated that the apportionment should have been made in the proportion of the respective income which the parties derive from the properties as was laid down in the Bench decision of this Court in Krishna Ayyar v. Kuthiravattath Nayar, 1958 Ker LJ 613. According to them the landlord is only entitled to have the capitalised value of the michavaram payable by the tenants and that the entire balance should be paid over to them.
3. On the other hand, counsel for the respondent argues that this contention of the tenants overlooks the fact that apart from receiving the rent, the jenmi has several other rights in the properties which must also be taken note of in fixing the compensation, viz., that the jenmi possesses the sub-soil rights and also the rights provided in the Malabar Tenancy Act of getting back possession of the properties from the tenants under certain conditions and it is urged that some portion of the compensation money should be allotted to the jenmi in respect of his possible right of getting possession which is cut oft for ever by the compulsory acquisition.
It is, therefore, contended that the Bench decision requires clarification as the decision is wrongly interpreted as laying down the proposition that in all cases of tenancies governed by the Malabar Tenancy Act the compensation money is to be divided between the jenmi and the tenant in proportion to what they were deriving from the holding.
(4.) Nobody can take exception to the general rule that compensation amount should he apportioned between the landlord and the tenant according to the value of the interest which each has in the land acquired. What those interests are is the question to be decided and that can be ascertained only by the evidence in each particular case. When' no evidence whatsoever is adduced in a case, it is only possible to follow some rough and ready rule and that is what has been laid down in the ruling referred to above. We may refer to para 15 reported at page 626 of the decision where it is stated:
'On the question of apportionment, our conclusion, therefore, is that, in cases 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;
X X X X
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 of the acquisition being treated as what 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 the dues payable to the jenmi being treated as what the kanomdar was getting from the properly.'
This decision, therefore, does not fetter the right of the parties to adduce evidence and the court in evaluating the respective rights and fixing the reasonable proportion of the compensation due to the parties. The rough and ready rule enunciated in the decision is not a rule of law and is only one of practice for the guidance of the courts, when the parties have failed to adduce evidence to show other considerations and circumstances which would lead to a more satisfactory assessment of their respective rights. When the parties have failed to adduce evidence the court has to proceed on some reasonable basis and in such a ease it will not be wrong to proceed on the formula suggested in the decision referred to above.
5. We may also point out that in assessing the respective rights of the parties, the possibility of a situation which might enable the jenmi to recover possession should not be ruled out unless the law on the date of the acquisition completely shuts out such a possibility. Other rights such as sub-soil rights that the jenmi may have, also, should not be ignored. The decision in 1958 Ker LJ 613 cannot be treated as an authority for the exclusion of such considerations.
6. As stated earlier no evidence was tendered either by the appellants or by the respondent and it is stated that no opportunity was given to them to adduce evidence. Both parties have produced certain documents when the case came up for hearing before the Division Bench and they have been admitted in evidence. The parties are agreed that these cases may be remanded to the trial court for taking all available evidence which might be produced in the case.
The appellants will also be at liberty to adduce, whatever evidence they think necessary, to show that the jenmi has no right to get any michavaram, as is contended by them. Since there is no evidence in the case on the matters relevant for the apportionment of the compensation amount, it is necessary in the interest of justice to send back the case to the trial court for fresh disposal.
7. In the result the decrees of the courts below arc set aside and the case is remanded to the trial court for fresh disposal according to law and in the light of the observations made above, after giving the parties an opportunity to adduce evidence. Parties will bear their respective costs incurred till now except the court fee paid on the memorandum of appeals which will he refunded. The documents admitted in evidence in this court will also be sent down to the lower court.