Innes and Muttusami Ayyar, JJ.
1. It is contended that plaintiff is barred under Section 43 of the Code of Civil Procedure as regards items 5-9, and as regards items 1-4, by Section 13.
2. The Suit 928 of 1878 was terminated by a karar to which first defendant was not a party. First defendant, however, though not a party to the karar, was a party to a petition to the Court saying that he had surrendered the lands in pursuance of the karar, and asking the Court to draw up a decree dismissing the suit.
3. Suit 912 of 1879 was brought by plaintiff to enforce the terms of the karar, as 1st defendant, though in the petition he had stated that he had surrendered the lands, had not actually done so, but persisted in retaining them. First defendant, however, demurred to this suit, saying that he was not a party to the karar.
4. The plaintiff then withdrew the suit with permission to bring a fresh suit on. his general rights as Karnavan to recover the property from first defendant.
5. He then instituted the present suit as Karnavan.
6. It does not appear to us that either Section 13 or Section 43 operates as a bar to plaintiff s present suit. The cause of action in this suit as regards all the items of property is the right of the Karnavan at any time to demand restoration of the property of the tarwad in the hands of the Anandravans. Since the termination of suit 928, first defendant has dishonestly retained the property he promised to restore, and leaving suit 912 (which was withdrawn with permission to bring afresh suit) out of consideration, plaintiff has been entitled, since the dismissal of suit 928, to seek for the recovery of the land still wrongfully withheld.
7. It is in the discretion of the Karnavan to leave any items of property he pleases in the possession of Anandravans, and the claim for the items 5-9 did not necessarily form part of the claim arising out of the cause of action in former suits so as to debar plaintiff from now suing to recover them.
8. As to the compensation for improvements claimed, we agree with the Court below that an Anandravan is not entitled to charge for improvements made in the course of the use of the tarwad property.
9. We do not understand upon what evidence it has been found that the tarwad has a kanam upon items 8 and 9, and before finally disposing of this appeal we shall request the District Judge to state the evidence upon which he finds that the tarwad have a kanam on these portions of the property.