1. The plaintiff-respondent obtained a decree for redemption of the kanom properties against the third defendant and in execution of that decree, obtained possession of the properties after paying to the third defendant the value of the improvements as settled by the court of trial. The 3rd defendant appealed against the decree with reference to the amount awarded for improvements: but he did not take any objection to the decree as to the right of the plaintiff to redeem.
2. The Appellate Court enhanced the amount payable on account of improvements and to that extent, modified the decree of the Lower Court. The 3rd defendant now claims mesne profits for the period from the date when the plaintiff obtained possession to the date when he deposited the value of improvements as fixed by the Appellate Court. In support of his claim the contention is put forward by the 3rd defendant that the decree for redemption and possession of the trial court was superseded by the decree of the Appellate Court, and as under the Malabar Law, the kanomdars are entitled to remain in possession of the property until compensation is paid to them for the improvements effected by them, the 3rd defendant was entitled to remain in possession of the property until the plaintiff paid the enhanced amount as found by the appellate court. The answer to this contention is that under Section 5 of the Malabar Compensation for Tenants' Improvements Act, th'tenant is not entitled to remain in possession after a decree in ejectment. Here there was a decree for ejectment which was not even challenged in appeal and the plaintiff lawfully obtained possession under that decree. It is difficult to see how the 3rd defendant, the tenant can say that he was entitled under Section 5 of the Malabar Compensation for Tenants' Improvements Act to remain in possession, and claim mesne profits. Mesne profits are payable by a person who is in wrongful possession of anothers' land but it is difficult to understand how the plaintiff can by any stretch of language be said to be in wrongful possession of the lands in the suit of which he obtained possession under a proper and effective decree of Court.
3. Reliance was placed on a judgment of this Court in C. M. Section A. No. 123 of 1914 but the facts of that case were very different from those we have got to deal with in this case. There, the decree of the first court had been reversed by the Lower Appellate Court and in the meantime the plaintiff had obtained possession and the decree of the Lower Appellate Court was set aside by the High Court in Second Appeal.
4. It seems to be quite clear that the 3rd defendant's claim for mesne profits is quite unfounded.
5. The appeal is therefore dismissed with costs.