1. The appellants here were defendants Nos. 3, 5, 6, 8 and 12 to 26 in the suit. Defendants Nos. 3 to 26 are members of a tarwad to whom the first defendant sub-leased the suit lands. The plaintiff sued to recover possession of the suit lands.
2. The point for consideration is one which arises out of Section 6 of the Malabar Compensation for Tenants' Improvements Act (I of 1900). The appellants, being subtenants and the plaintiff having succeeded in his suit for ejectment, claimed compensation for improvements under Section 5 of the same Act. The question here is whether the first respondent, the plaintiff in the suit, is entitled to set off any money due to him for rent in respect of the tenancy against the sum found due to the tenants for compensation. It is contended for the appellants that they are the sub-tenants of the first defendant and have paid rent to him and that there is, therefore, nothing due in respect of rent from them to the first respondent. In the lower Appellate Court it was held that on a construction of Section 6 the appellants' contention must fail and accordingly the landlord's (first respondent's) claim for a set off in respect of rent due to him, there being admittedly rent due to him from the first defendant, must be allowed. In our view, the lower Appellate Court was right. Section 6(1) provides that in an ejectment suit against a tenant and in Section 3(1) of the Act 'tenant' is defined to include a sublessee and the appellants are, therefore, tenants within the meaning of Section 6(1) if the plaintiff succeeds, as he did here, the defendant, which obviously means the tenant against whom an order of ejectment is made, can put forward a claim for compensation for improvements and that when this has been established and the amount of the compensation is ascertained, a decree must then be passed declaring the amount so found due and ordering that on payment by the plaintiff into Court of that amount the defendant is to put the plaintiff in possession of the land with the improvements thereon. There is no reason for saying that defendant does not mean defendants also. Sub-section (2) provides for a set off by the landlord of 'any sum of money due by the defendant to the plaintiff for rent or otherwise in respect of the tenancy'. What gives rise to the set off, therefore, is the compensation awarded to the defendant. If no compensation is awarded, there is no right of set off. The appellants either come within the provisions of Section 6 or they do not. It seems to us clear that, if they do come within the provisions, as they manifestly do, they come within the provisions of the section for all purposes and that it is immaterial whether the rent due to the plaintiff is due to him by his immediate lessee or by sub lessees. The fact that the sublessee has paid his rent to the lessee is a matter to be settled between them and is not one which, in our view, can alter the right of the landlord to his set off in respect of unpaid rent. In our opinion, therefore, the lower Appellate Court's decision upon this point must be affirmed and this second appeal dismissed with costs.
3. With regard to the first respondent's Memorandum of Objections with regard to the lower Appellate Court's order for costs, we agree with the reasons given by the lower Appellate Court for ordering that both parties to the appeal are to bear their own costs in the trial Court except in regard to commission batta which is to be shared in equal moieties. The Memorandum of Objections is also dismissed with costs.