1. The plaintiff is the appellant. The subject matter of the appeal relates to the value of improvements awarded to defendant 2 by the decree for redemption passed in plaintiff's favour. The appellant, the jenmi, says that with respect to certain of the suit plots the learned Subordinate Judge should not have given any value for improvements, whilst with respect to certain others he says the value awarded should be reduced. The amount awarded by the decree for value of improvements is Rs. 29,193-2-5. The appeal is valued at Rs. 7,906-7-10. The respondent has filed a Memorandum of Objections in which he claims that the lower Court should have awarded him Rs. 6,000 more for the value of improvements. We will deal with the appeal and the Memorandum of Objections together.
2. The first item dealt with in the argument of the appellant's counsel is covered by para. 32 of the lower Court's judgment. This relates to the land called Kayyara. The learned Judge has awarded the respondent compensation for converting 1510i perukkams of paramba into double-crop land. He has arrived at the figure of 15104 by deducting from the present number of perukkams in the land namely 64661/2, 4956 perukkams which appear in the Hindubi paimaah as the perukkam extent of the lands, see Ex. X. The date of the Hindubi paimash is 1805. There is nothing on record to show that defendant 1's family was in possession of the lands at the time. Ex. X shows that at its date, about 1862, the perukkam extent of the land was 5152. Defendant l's family was in possession by this time. In our opinion the respondent should have been awarded compensation for improvements poly for perukkams 64661/2 minus 5152, that is 13141/2 perukkams. He will thus be entitled to get 13141/2 of Ea. 1879-12-6 divides by 33221/4 instead of 15101/2 of Rs. 1,879-12-6 divided by 33221/4 awarded to him by the lower Court. According to this calculation defendant 2 will be entitled only to Rs. 744.
3. The next item dealt with covers para. 33 of the judgment and forms the subject matter of the appeal as well as of the Memorandum of Objections. In this paragraph two different numbers of land are referred to, lands, bearing Nos. I (ii) and III (iii). The present extent of I (ii) is 1045 perukkams and that of III (iii) is 1197 perukkams, the total extent being 2242 perukkams. The total exent of I (ii) was 1803 perukkams under Ex. X. Defendant l's family was admittedly in possession in 1862. These lands are now registered a single-crop lands. The learned Judge has not given any value for improvement with respect to this item. We think it may be presumed that the difference in the present extent and the extent Ex. X, namely 2242 minus 1803, that is 439 perukkams, may be considered to have been converted from paramba into single-crop lands and that defendant 2 should be given the value for such conversion. He will thus be entitled to get 439 by 1045 of Rs. 547.3-2. We are told that this will amount to Rs. 229. This is one of the points raised by the respondent in his Memorandum of Objections. The other land III (iii) was treated by the learned Subordinate Judge as double-crop land and compensation with respect to it was given for converting it from single-crop into double-crop land. The land is registered as single-crop land. The appellant argues that there is no evidence to show that the land was converted into double-crop land. The learned Judge relied on Ex. Ill series, punja chits, which show that a second crop was raised for some years on the land. This does not necessarily show that the land must be double-crop land. In the absence of definite evidence to prove conversion of the single-crop into double-crop land we must disallow the respondent the sum allowed by the lower Court as compensation for improvements with respect to this land. This sum we are told, is Rs. 838-1-4. But the appellant concedes in his memorandum of appeal that a sum of Rupees 100 may be given to the respondent. He will accordingly be awarded only that sum with respect to the improvement alleged to have been made on this land.
4. The third item dealt with is covered by para. 34 of the judgment. The only objection taken by the appellant is that the amount of Rs. 800 allowed by the lower Court as improvement value for the land referred to in that paragraph is much too high. The appellant says that a sum pf Rs. 300 may be allowed. We accept the amount fixed by the learned Judge as a rough estimate.
5. The next item dealt with is covered by para. 37 of the judgment. This forms the subject matter of the appeal and also of the Memorandum of Objections. Three different sets of land are dealt with in this paragraph, namely, (a) I (iii), (iv), (v); (b) III (iv), (v); and (c) IV (ii), (iii), (iv). With respect to (a) and (c) that is I (iii), (iv), (v), and IV (ii), (iii), (iv) no compensation for improvements was allowed by the learned Judge. In this appeal we are not concerned with IV (ii), (iii), (iv). With respect to (b) that is III (iv), (v) he allowed Rs. 969-15-9 by way of compensation. The appellant says that this sum is too high and that the lower Court should not have allowed more than Rs. 200. We accept the sum allowed by the lower Court as the proper amount. The respondent in his Memorandum of Objections claims that the lower Court should have awarded compensation for lands I (iii), (iv), (v). In Exs. 10 and 52 these lands are described as 'taking one or two crops without stating what extent took one and what two.' The learned Judge also says that defendant 2's predecessor-in-title did not come into possession of item 6 included in these lands till 1851-52. But he forgets that in 1862, by which time the lands must have been improved the extent mentioned in Ex. 10 is 19477 perukkams. The main reason for refusing the compensation is that it is difficult to decide how many parukkams consisted of two-crop lands and how many perukkams of one-crop land as the entire land seems to have been treated as a single block. The same objection applies to lands I (vi) and III (vi) and item 13 dealt with in para. 39 of the judgment with respect to which the learned Judge has awarded compensation for improvements. If compensation can be given for the lands dealt with in para. 39, we do not see why the same should be refused for the lands in question. All the lands are registered as double-crop lands.
6. It being difficult to find what extent of land yielded one-crop and what extent two crops, it is wrong on principle to award compensation for the entire extent of the land treating the whole of it as double-crop land. But at the same time it is wrong also to refuse to award any compensation. In the absence of definite evidence we can act only on a rough estimate. We think defendant 2 may well be given value for improvements with respect to half of the perukamm extent disclosed by the evidence. According to the Commissioners the present perukkam extent of his land is 23831. The perukkam extent shown in Ex. 10 is 19477. The difference in the perukkam extent is 4350. We would award defendant 2 compensation for half of 4350, that is 2175 perukkams. This amount would be Rs. 1,366-8-0.
7. The next item dealt with is covered by para. 39 of the judgment. It refers to lands I (vi) and III (vi). With reference to these lands also it is stated in the documents that they yield one crop and two crops, without specifying the area now entirely double-crop lands. With respect to I (vi) the Subordinate Judge has awarded value for improvements for 3500 perukkams, roughly the difference between 7399 perukkams appearing in the Settlement Register and 3900 perukkams appearing in Ex. 10. We think these lands also should be dealt with exactly in the same way as we have dealt with lands I (iii), (iv), (v). The Subordinate Judge has taken the perukkam extent in the Settlement Register for making the calculation. We think as in the case of the other lands, the extent in the Commissioner's account which is the present extent should be adopted instead of the extent mentioned in the Settlement Register. This extent is 7756 perukkams. The difference between this extent of 7756 perukkams and the perukkams extent in Ex. 10 which is 3900 is 3856 perukkams. As in the case of I (iii), (iv), (v), we do not think defendant 2 should be given improvement value for more than half of this extant, that is 1928 perukkams for item I (vi). Thus the amount defendant 2 will be entitled to as compensation for reclamation with respect to I (vi) will be 1928 by 3958 of Rupees 2,388-7-4. With respect to item III (ii) the Subordinate Judge has awarded defendant 2 Rs. 730-11-3 treating half of the old cultivable area as a single-crop and the other half as double-crop as we have done in the case of lands I (iii), (iv)(v) and I (vi). On this basis defendant 2 has been awarded Rs. 730-11-3. This figure may be allowed to stand.
8. The next item dealt with, I (vii) and III (vii), is covered by para. 41 of the judgment. The learned Judge has awarded Rs. 148-14-2 and Rs. 245.1-2 as compensation value for these lands. Ha holds that the claims made by defendant 52 are probably true. The lands now are admittedly double crop lands, We think the Subordinate Judge's estimate of the improvements and his reason for making the award may be accepted. The last point in the appeal relates to the claim made by the appellant for one third of Rs. 1, 400 alleged to be the price of fuel trees cut from the forests growing on the demised land. This claim is based on the subkanom and the kychits Exs. A and B which provided that whenever the growing forests in items 19, 20, 22, 23, 25 and 26 should be leased out, the jenmi (the plaintiff's mana) should get a third of the price fetched. The learned Judge has refused this claim on the ground that it is opposed to Section 19, Madras Act 1 of 1900. In Raja of Cochin v. Kithunni Nair 1917 Mad. 162, a Full Bench considered the question whether the provision for payment to the jenmi of a kuttikanom of 8 annas a tree cut by the tenant could be enforced. The learned Judge held that the provision could be enforced having regard to the facts of the case. There the kuttikanom imposed was 8 annas on the average price of Rs. 15 for every tree cut. It was pointed out that the fee levied was not unreasonable. In the present case, as pointed out by the learned Judge
the levy is one-third the value (and that not once but periodically) of firewood plants of spontaneous growth, and not a paltry kuttikanom of 1-30th.
9. In the judgment of Abdur Rahim, J., in Raja of Cochin v. Kithunni Nair 1917 Mad. 162, it was pointed that such case of this character should be dealt with on its own merits. We agree with the learned Subordinate Judge that the present does not fall within the scope of the decision in Raja of Cochin v. Kithunni Nair 1917 Mad. 162. In these circumstances we do not think it is necessary to consider whether that decision requires reconsideration.
10. The counsel for the respondent raised some arguments with respect to the trees on the land basing them on the accounts of the first set of Commissioners. The learned Judge has for sufficient reasons, preferred the accounts of the second set of Commissioners. It was not shown to us that the learned Judge was wrong in doing so. The question argued does not therefore arise. The decree of the lower Court with respect to the improvements will be modified in the light of the above observations. Both in the appeal and in the memorandum of objections the parties will pay and receive proportionate costs.