1. This second appeal arises from an order of ejectment and for recovery of possession of the suit property on the ground that the plaintiffs, the landlords, wanted the land for building purposes. During the pendency of the suit, a temporary injunction was issued ordering the tenant not to erect any further buildings on the land. The Court below accepted the contention of the plaintiff that they wanted the land for building purposes and gave them a decree for an ejectment. It further ordered compensation to be paid by the plaintiffs to the defendant for the value of the basement of the house erected on the land because that basement had been constructed before the issue of the injunction order; but it has refused to include the value of the house, built subsequent to and in disobedience of the injunction order.
2. The tenant contends in second appeal that as the landlords did not prove that they needed the whole of the land for building purposes they cannot be given a decree for possession of the whole land. They however stated in their plaint that they needed the land, and the tenant did not in her written statement specifically say that even though the landlords needed land for the construction of a house they did not need the whole land. That point was raised in the lower Appellate Court; but I think that the Court was right in refusing to consider it. In fact, the Court had no material on which it could decide this question. It was one that should have been raised in the written statement, in which case it would have become an issue in the suit. As the learned District Judge pointed out the suit proceeded on the basis that either the landlords wanted the whole land or they did not need any of it.
3. The other contention put forward in this second appeal is that despite the fact that the appellant disobeyed the injunction of the Court, she is nevertheless entitled to improvements up to the date of ejectment. The wording of Sections 5, 6 and 7, Malabar Compensation for Tenants Improvements Act, has been cited; and it appears that the tenant is entitled to compensation for all improvements made up to the date of dispossession, even though some of the improvements may have been made after the suit for ejectment had been filed and even after a decree had been passed. It appears from a reading of these sections that the Court has no discretion in the matter. It must order compensation for improvements made up to the date of dispossession to be paid to the tenant; and it cannot refuse to order compensation to be paid because of some disobedience of an order of the Court. Mr. Pocker has sought to meet this difficulty by contending that the order of injunction must be considered not merely as a prohibitive order but also as a decision which would operate as res judicata on a question that had to be decided before an injunction order could be issued. Even so, the passing of an order of injunction only means that at the time the order was passed, the Court was satisfied that the property was in danger of being wasted, damaged, or alienated; it does not mean that any act done by the tenant subsequent to the order of injunction necessarily amounted to wasting, damaging or alienating the land. If, in fact, the erection of the building for which the tenant claims compensation has not added to the value of the holding, she would not be entitled to any compensation whatsoever. The question whether the erection of the building by the tenant has added to the value of the holding is a question of fact, that has not yet been decided. Even if it adds to the value of the holding, it does not necessarily follow that the increased value of the holding on account of the completion of the building is satisfactorily measured by the amount of money spent by the tenant in erecting this building.
4. The appeal is allowed and the first appeal remanded to the lower Appellate Court for fresh disposal after re-estimating the value of the improvements down to the date of dispossession. Costs in this Court will abide the result.