1. In this case the plaintiff sued to recover what he called a 'house site' in Cochin town from the defendants and prayed that the defendants might be ordered to pay the arrears of rent due and to demolish the house built on the land. The Subordinate Judge who tried the case made a decree for the plaintiff, rejecting defendant 6's claim that she was entitled to compensation for the house under the Malabar Compensation for Tenants' Improvements, Act. The learned District Judge of South Malabar on appeal held that defendant 6 was entitled to compensation for the house and remanded the suit to the Subordinate Judge. This appeal is against the order of remand.
2. Ex. F is the lease counterpart executed by defendant 6's predeoessor-in-title. It is dated the 29th October, 1911. It shows that he had been in, possession under a previous lease for a short period and had built a house on the site. .In Ex. F he agreed that, if he was required to surrender the property for any of certain reasons specified, including default in payment of rent, he was to demolish the house. It was contended for the defendant 6 that the Malabar Compensation for Tenants' Improvements Act applied to the case and therefore the agreement that the original lessee would demolish the house and not claim compensation for it was invalid. The learned District Judge found that what let by the plaintiff's predecessor to defendant 6's predecessor was a kudiyiruppu, in which he had built a house, and. that the Act applied and therefore for that house defendant 6 was entitled to compensation.
3. It has been contended before us that what was let was the house. That is obviously incorrect because Ex. F makes it clear that the house was built by the lessee; the rent was made a charge upon the house: as the lessee's, and the lessee was to demolish it. It cannot be suggested that the house was ever the landlord's or that it was a house that was let under Ex. F.
4. Then more reasonably it was contended that what was let was the actual area of land upon which the house stood and no more, that the land concerned was merely the site upon which the house stood. When we examine Ex. F and the schedule attached to it, it is clear, I think, that that is not correct. The, boundaries given in the schedule show that something more than the land upon which the house actually stood was let. What was let was a compound or paramba or kudiyiruppu, within which the house had been built. Unfortunately the, measurements of that compound are not given in the deed; but it is clear from the boundaries--a lane on one side, a lane on the other, two parambas on another side and a neerthodu on the remaining side--that the compound, of whatever size it is, includes something more than the actual area on which the house stands. Moreover, Ex. F refers to araichas in that area, which the tenant is to protect. That also shows that there must be some compound round the house. In my opinion the learned District Judge was right in finding that what was let to the tenant was a kudiyiruppu in which he had built a house.
5. The only question then is whether that is a case to which the Malabar Compensation for Tenants' Improvements Act applies. It has sometimes been contended that that Act applies only to agricultural holdings. That question was recently considered by a Bench of this Court in S.A. No. 1532 of 1925, and after an examination of the Act, the previous law and all the relevant cases it was decided that the Act applies not only to agricultural tenancies but also to building leases. That would cover the present case. Indeed it would more than cover the present case, in which it is not necessary to go so far. In Chathukutty v. Kiunhappu I.L.R. (1927) M. 813 : 53 M.L.J. 224 Jackson, J., expressed the opinion that the Act was confined to agricultural holdings and kudiyiruppus. The decision of the Bench in S.A. No. 1532 of 1925, though it goes further, agrees with Jackson, J.'s view that the Act applies to kudiyiruppus, about which, speaking for myself, I have never felt any doubt. That being so, in the present case it appears to me that the learned District Judge was right and that defendant 6 is entitled to compensation for this particular house.
6. I may add that I do not wish on this occasion to express any opinion whether a tenant, to whom a building is let, can claim compensation for any improvements made to that building on the ground that the building itself must stand upon land and therefore he is a tenant of land within the meaning of the Act. That is a question into which it is unnecessary to go at present. .
7. In my opinion this appeal should be dismissed with costs,
Anamtakrishna Aiyar, J.
8. I agree.
9. The learned District Judge's finding is that the present is a case of a lease of vacant kudiyiruppu (house site) to the 6th defendant who built a house thereon, and that though in a subsequent renewal of the lease there was a provision that the; 6th defendant would on ejectment demolish the building and restore the site to the plaintiff, the stipulation is not binding on the 6th defendant having regard to the provisions of the Malabar Compensation for Tenants' Improvements Act. Reading the document Ex. F as a whole, I agree with the learned District Judge that what was leased to the 6th defendant was not merely the actual site on which the house was built but the paramba within the four boundaries mentioned in Ex. F; and this is what usually happens in such cases, the tenant putting up a building in a portion of the paramba leased and making kuikurs, etc., in. the other portion of his holding. (See Logan's Malabar Law, Vol. II, cxcix.) I am unable to accept the contention of the learned Advocate for the appellant that what was leased to the defendant was a building with only the actual site on which the building stands. The building admittedly belongs to the 6th defendant, and if the building belonged to the landlord there is no meaning in the provision that on ejectment the 6th defendant (tenant) would demolish the building (according to the assumption of the landlord's) and restore the paramba only to the landlord. . . .
10. I proceed on the footing that what was leased was a paraniba and that the building stands only on a portion of the property leased.
11. In Chathukutty V. Kunhappu I.L.R. (1927) M. 813 : 53 M.L.J. 224 it was observed by Jackson, J., that the Malabar Act applied to improvements effected by lessees of the agricultural holdings and vacant kudiyiruppus. In Subju Sahib v. Malabar District Board I.L.R. (1929) M. 54 : 57 M.L.J. 673. I had a case where the District Board of Malabar leased certain land forming roadside poramboke to a, person under an express condition that he should quit the land without claiming any compensation for improvements of any sort that might be effected by him thereon. 1 held that the roadside poramboke in question could not be said to be either agricultural land or kudiyiruppu site. I also held that a substantial building put upon the roadside poramboke by the defendant was inconsistent with the purpose for which the land was let. I accordingly held that the defendant was not entitled to claim any compensation under the Act in the circumstances. The decision of two learned Judges in, Second Appeal No. 1445 of 1889 (unreported) was quoted before me, where the Court held that the lease of a dwelling-' house within the limits of a town for purposes of residence only did not come under the Act of 1887. The case before me not being one of a lease of a dwelling-house but only of a ' vacant land (roadside poramboke), it was pressed upon me that the observations of the learned Judge in Chathukutty v. Kunhappu I.L.R. (1927) M. 813 : 53 M.L.J. 224 relating to lease of vacant kudiyiruppu required reconsideration; but, having regard to what I understood to be the practice obtaining with reference to leases of vacant kudiyiruppus, viz., that the tenant in such cases ordinarily puts up a house on a portion of the paramba and make kuikurs on the other portions convenient for the purpose, thus converting the paramba into a sort of garden-house (garden with a house therein), I stated that absolutely no grounds had been made out why I should not follow the same. The question has been again raised before us whether the Act I of 1900 applies to leases other than leases for agricultural purposes. It is not necessary in this case to go into that larger question, since the present is a case of a lease of vacant kudiyiruppu as described already, and a bench of two learned Judges of this Court has very recently held in Second Appeal No. 1532 of 1925 that the Act applies to leases of vacant ' kudiyiruppus. The present is, if anything, a stronger case in favour of the tenant than the one before the learned Judges. The 6th defendant, a lessee of a vacant kudiyiruppu paramba has put up a house on a portion of the paramba included in his holding; he is entitled to compensation in respect thereof, as held by the learned District Judge. As I said already, it is not necessary in this case to say anything on the other question which was argued before us, whether a lessee of a dwelling-house in a town (the lease being unconnected with agriculture) would be entitled under Madras Act I of 1900 to claim compensation for improvements effected by him in respect of the building leased out to him.
12. I agree that the Civil Miscellaneous Application should be dismissed with costs.