Alfred Henry Lionel Leach, C.J.
1. The appellant is a trader in timber. On the 14th January, 1937, he acquired a lease from the respondent of a small piece of land at Olavakode in the Palghat Municipality. His object in taking the lease was to store timber on the land. When he entered into occupation he erected three sheds. The landlord had the right to determine the tenancy on demand and required the tenant to vacate in the early part of 1940. As his demand for possession was not complied with he filed a suit for ejectment in the Court of the District Munsiff of Palghat. The appellant pleaded that he could not be evicted until the respondent had paid to him the value of the three sheds as they had been erected with the knowledge and consent of the respondent. This plea was rejected by the District Munsiff who granted a decree for ejectment without requiring the respondent to make any payment on account of the structures. The appellant appealed to the Subordinate Judge of South Malabar. In that Court the respondent based his claim for compensation on the provisions of the Malabar Compensation for Tenants Improvements Act, 1899. The Subordinate Judge held that the Act did not apply and dismissed the appeal. The appellant then appealed to this Court. In the first place the case came before Somayya, J., who called for a finding from the Subordinate Judge on the question whether the erection of the sheds constituted an improvement to the land. The Subordinate Judge reported that it did. Somayya, J., then directed that the case should be placed before a Bench for hearing as the extent of the application of the Malabar Compensation for Tenants Improvements Act was in dispute.
2. The effect of the Act has been raised in several cases which have come before this Court and it is necessary for the purpose of deciding this appeal to examine them in detail. We propose to take them in the order of date but before doing so we must refer to the relevant sections of the Act.
3. The word 'tenant' is defined in Section 3 and includes a person who as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee or sub-mortgagee of land is in possession. The section also defines the word ' improvement.' It means any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding was let, mortgaged or occupied. Section 4 states what shall be presumed to be improvements for the purposes of the Act until the contrary is shown. They are as follows:
(a) The erection of dwelling houses, buildings appurtenant thereto and farm buildings; (b) the construction of tanks, wells, channels, dams and other works for the storage or supply of water for agricultural or domestic purposes; (c) the preparation of land for irrigation; (d) the conversion of one-crop into two-crop land; (e) the drainage reclamation from rivers or other waters, or protection from floods or from erosion or other damage by water, of land used for agricultural purposes, or of waste land which is culturable; (f) the reclamation, clearance enclosure or permanent improvement of land for agricultural purposes; (g) the removal or reconstruction of any of the foregoing works, or alterations thereon or additions thereto; (h) the planting or protecting and maintenance of fruit trees, timber trees and other useful trees and plants. Section 5 entitles a tenant to compensation for ' improvements ' when he is ejected from the land.
4. The first case in which the scope of the Act was discussed by this Court is Chathukutty v. Kunhappau : (1927)53MLJ224 . It was a second appeal which was heard by Jackson, J. There the plaintiff had let to the defendant a shop in a town in Malabar for five years, the tenant agreeing to remove a bakery oven erected by him therein when surrendering the shop at the end of the period. On the expiration of the tenancy the plaintiff sued to recover arrears of rent and possession of the property. The defendant pleaded that he was entitled under the Act to compensation for the oven before being ejected. The learned Judge held that it was entirely foreign to the intention of the enactment to hold that because a house or shop must necessarily stand upon land, therefore, whenever a house or a shop was leased the tenant was the lessee of land within the meaning of the statute. As far as his knowledge went it had invariably been held in Malabar that the Act applied to agricultural holdings and to what were known as kudiyiruppus or vacant sites available for buildings and did not apply to sites which were already mainly occupied by houses or shops. The opinion of Jackson, J., that the Act only applies to improvements effected in agricultural holdings and vacant sites built upon when let for that purpose has found favour in subsequent decisions of this Court.
5. In Pathumma Umma v. A. Mohideen A.I.R. 1938 Mad. 929, Srinivasa Ayyangar, J., expressed the same opinion; but Really, J., who sat with him did not consider that the case then under discussion called for any expression of opinion. Ananthakrishna Aiyar, J., followed Chathukutty v. Kunhappu : (1927)53MLJ224 in Sabju Sahib v. Malabar District Board (1927) 57 M.L.J. 673 : I.L.R. 53 Mad. 54.
6. The case which has been relied upon by the appellant is Avaru v. Asi Bai : (1931)61MLJ462 which was heard by Wallace and Madhavan Nair, JJ. The question there was whether the operation of the Act was restricted to agricultural leases or whether it extended to leases of vacant sites let for the erection of houses. The learned Judge held that the Act was not restricted, to agricultural leases, but embraced building leases as well. It is said that there are indications in the judgment that the Court was of the opinion that the Act applied to all tenancies in Malabar; but we find ourselves unable to accept this contention. In our opinion the learned Judges did not intend to go beyond holding that the Act applied to leases of vacant sites for the purpose of the erection of houses thereon by the tenants as well as to agricultural tenancies. After an examination of Act I of 1887 (the Malabar Compensation for Tenants Improvements Act, 1886), the custom in Malabar and the decisions of this Court bearing on the subject the learned Judges stated their conclusion in the following words:
For the above reasons, we are of opinion that the operation of Act I of 1900 is not restricted to agricultural tenancies that it applies to building leases as well, that in this view it is unnecessary to consider what the law was prior to 1900 and that, even if it is necessary to refer to the prior law on the ground that the words of the statute are not very clear, the law administered in Courts without any question for over a century has always been to the effect that in Malabar the tenant of a vacant site is always entitled to claim compensation for dwelling houses that he may have erected on the site.
7. In the judgment reference is made to ' building leases '; but it is obvious that this expression does not mean leases of land for any kind of building but only for the building of dwelling houses.
8. The judgment in Avaru v. Asi Bai : (1931)61MLJ462 was followed by Reilly and Anantakrishna Aiyar, JJ., in Paredath Chori George v. Thithi Umma (1930) 60 M.L.J. 214, but Reilly, J., refused to decide whether a tenant to whom a building was let could claim compensation for improvements made, on the ground that the building itself must stand upon land and therefore he was a tenant of land within the meaning of the Act. That question was, however, decided by another Division Bench (Venkatasubba Rao and Horwill, JJ.) in Badsha Sahib and Co. v. Lakshmi Kutty : (1937)2MLJ814 , where it was expressly held that a lessee of a shop was not a lessee of the land and therefore he was not a tenant within the meaning of the Act. It may be mentioned that in the course of the judgment in that case the decision of Jackson, J., in Chathukutty v. Kunhappu : (1927)53MLJ224 was expressly approved. :
9. The latest case is Successor and Joint Manager Pandan Chemminiyam Achuthan v. I Pandan Govindan Karnavan and Manager of the Tavazhi Tarwad of Chirakkal amsom desom : AIR1945Mad279 , where Horwill, J., also held that the application of the Act was confined to ' improvements made in regard to agricultural lands and to kudiyiruppus.
10. It will be seen that the judgment of Jackson, J., in Chathukutty v. Kunhappu : (1927)53MLJ224 has not in any case been dissented from and that it has been expressly approved by three Division Benches of this Court. Those decisions are binding on us and we may add that we respectfully agree with them. To extend the Act to all kinds of leases would, in our opinion, mean running counter to the scheme of the statute and the clear indication of its scope expressed in Section 4. Moreover, it must be remembered that the Act of 1900 followed the Act of 1886 which only applied to agricultural leases. The old Act was passed by the local legislative council which at the time had no power to deal with leases other than agricultural leases. It had power to legislate with regard to agricultural leases as they were outside the scope of the Transfer of Property Act. When the Malabar Compensation for Tenants Improvements Act, 1899, was passed the local Legislature had power to legislate in respect of other tenancies but the wording of the Act leaves no doubt in our minds that it was not intended that the extension of the provisions of the old Act should go beyond leases of vacant sites for the building of dwelling houses. The Legislature was merely placing on the statute what had been the custom with regard to leases of vacant house sites. If the appellant's argument were to be accepted it would mean that a person who acquired a lease of a vacant site could erect thereon any kind of building, even a factory and claim compensation on the termination of the tenancy. It would also mean that the Transfer of Property Act would not be applicable to any leases in Malabar so far as improvements were concerned. We hold that the Act does not extend beyond agricultural leases and leases of vacant sites let for the purpose of building dwelling houses thereon.
11. It follows that this appeal must be dismissed with costs. The appellant is of course entitled to remove the structures and he will be allowed two months' time for this purpose.