Srinivasa Ayyangar, J.
In this second appeal the defendants against whom a decree for ejectment has been made have appealed to this Court against the refusal of the lower Appellate Court to grant to them the value of certain improvements consisting in the construction of puaca building on the site in question.
A preliminary objection to the appeal has been taken on behalf of the respondents on the ground that the proper Court-fee has not been paid in respect of the appeal. The appellants have paid the same Court fee in the second appeal as was paid in respeot of the plaint by the plaintiff-respondeat. The contention has been advanced that though in a suit for possession the Court-fee payable on a plaint may be as prescribed in a particular manner by the Court Fees Act, still when the appeal is by the defendant and when the claim by the defendant on appeal has reference the conpensation claimed by him but refused to be granted, the valuation of the appeal should logically be the value the defendants seek to recover from the plaintiff and that, therefore, the proper Court-fee should, be paid thereon.
In the trial Court before the District Munsif the decree in favour of the plaintiff included a condition that the plaintiff should pay the defendants as and for in provements a sum of Rs. 2,053. This condition in the decree was on appeal deleted by the learned Judge, The provision in the Court Fees Act is that in respect of a Memorandum of Appeal in such a case the Court-fee payable is ad valorem on the amount or value of the subject-matter in dispute. The true logical position then is that if the subject-matter in dispute in appeal has reference merely to the value of the improvements then the Value thereof should be taken to be the value for purposes of appeal and Court fee should be paid thereon. But it has been contended by the learned Vakil for the appellant that the appeal is not merely in respect of compensation but has reference also to the title of the plaintiff-respondent and that the compensation is merely claimed as a condition precedent to the plaintiff seeking to enforce their right to eject. If it is a mere condition precedent it follows logically that the subject matter in dispute should be regarded ody as the right to possession of the plaintiff. In the Memorandum of Appeal before us there are grounds taken as regards the title of the plaintiff. It cannot be regarded as a memorandum merely confined to the amount of compensation. Even if it were so, if it was Bought to be enforced merely as a condition precedent to a right to possession, the subject-matter in dispute would still be only the claim for possession. Though there is a considerable force in the contention of the respondents that the subject matter in dispute has reference only to the amount of compensation and that the question of tilla raised is a mere camouflage for escaping liability for Court-fees we are not prepared to say that especially in the case of an enactment for revenue purposes such as the Court Fees Act, it is not open to parties to avail themselves of any camouflage that the law allows or does not forbid. We are not prepared to say that it is open to a Court in Buch circumstances to neglect the actual form of the appeal and determine the question of Court-fees having regard to what may be said to be the substance of the claim.
Further, as regard's this question, the decision in Reference under Court Fees Act, Section 523 M. 64; 8 M. Dec. (N.S.) 453, is a direct authority in favour of the contention of the appellants. Though in that case the learned Judges held that even in a case where the only question raised is as to value of the improvements, the appellants should not be called upon to pay any he other than that payable in a suit for possession of land, stiil that observation must be regarded as made subject to the indication that the compensation is claimed as merely incidental to the decree for possion.
The decision in the case of Sakharan Nair v. Kongot Echaran Nair (2), is also a direct authority in favour of the appellants' contention.
To the same effect is the judgment of Krishnan, J., in In re Garapati Butchi See-thayamma : AIR1925Mad323 .
See also Meloth Kannan Nair v. Kodath Kammaran Nair 22 Ind. Cas. 609; 1 L.W. 102; (1914) M.W.N. 231. No doubt Mr. Kuma-raaawmi Sastriar, J., in the case of In re Porkodi Achi : AIR1922Mad211 , has after an examination of the whole of the case law on the point, decided that in particular cases, the Memorandum of objection should be stamped on the amount which the respondent was directed to pay and which she was seeking to eseape liability from.
Though in the case of In re Tiruvangalath Nellyoton Paidal Nayar : AIR1926Mad225 , the decision was that the appeal in that case should be valued on the amount of improvements still the learned Judges Phillips and Ramesam, JJ., held that in a case where the claim for improvements is incidental to a decree for possession the Court-fee payable may be as in a suit for possession, and the learned Judges even while referring to the said case of Sakharan Nair v. Kongot Echaran Nair (2), tried to distinguish the case on the ground that the right to redeem was in issue there. Thus the decision of this Court in the case of Sakharan Nair v. Kongot Echaran Nair 3 Ind. Cas.459; 20 M.L.J. 121; 6 M.L.T. 245 has Btood as good law and had not been, overruled or effectively dissented from, during all these years.
Our attention has been drawn to an order in an unreported case, Second Appeal No. 266 of 1924, where I held is a similar case that the stamp payable oa appeal when the appeal relates to the value of improvements alone should be ad Valorem and not as in the suit for possession. But that order was made with out full argument and merely following the decision of Mr. Kumaraswami Sastriar, J., in the case already referred to and, without advertenee further to the decision in the case of Sekharan Nair v. Kongot Echaran Nair (2). I am satisfied that my order in the said case was not right.
Having regard to the observations already made we feel bound to adhere to the principle of that decision and hold in this case that the objection to the amount of Court-fee paid on appeal cannot be sustained.
The preliminary objection thus being overruled the next question is whether the lower Appellate Court was wrong in its decision that the defendants-appellants were not such tenants as were entitled to an order for compensation in their favour.
The finding of the lower Appellate Court is that the defendants were not even lessees but only licensees. We have not been satisfied that this finding is wrong either in fact or in law. There is also the further fact that even if the defendants should be regarded as tenants, they were not agricultural tenants and they could only be regarded as tenants of a building that they appear to have put up substantial structure in respect of which they are now claiming compensation.
Having regard to these findings it is unnecessary to (deal with?) the matter at any great length. The learned Counsel for the respondents has also drawn my attention to the decision in the case of Koottayi Chathukutty v. Thottathil Kunhappu : AIR1927Mad776 by Mr. Jackson, J. It has been held in that case that the Malabar Tenants' Improvements Act applies only to agricultural holdings and not to building sites.
In these circumstances, we are not satisfled in this respect that the judgment of the learned Subordinate Judge, who was himself a gentleman of the West Coast, was wrong.
The second appeal is, therefore, dismissed with costs.
The lower Appellate Court in this case gave some time to the defendants-appellants to remove the superstructure put up by them. On account of this appeal apparently nothing has been done. The defendants will have three months from this date within which to remove the superstructure placed by them on the land. They should, therefore, within the expiry of three months from this date deliver up to the plaintiff possession of the suit property which they were allowed to occupy by the plaintiff in the same condition in which it was at the time when they were let into possession.
In this case the defendants, who appeal, have disputed the right of the plaintiff to recover possession of the land in question; but their main contention, and the only one which has been argued before us, is that they are entitled to the compensation for improvements awarded to them by the District Munsif but disallowed by the Subordinate Judge. They have paid Court-fees, as did the plaintiff originally only on the subject-matter of the suit other than the compensation for improvements. A preliminary objection has been raised before us for the plaintiff that the appellants must pay Court-fee here also on the compensation for improvements which they claim.
In 1899 this question was dealt with by a Bench of this Court in Reference under Court Fees Act, s,5 (1) acase from S. Kanara. There the plaintiff sued for ejectment, and the 2nd defendant set up a title in herself and also claimed Rs. 500 as compensation for improvements; a decree was made for the plaintiff in the trial Court, the claim in respect of improvements being disallowed; the 2nd defendant then appealed to the District Court, again raising both the question of title and her claim for compensation for improvements. The District Judge referred the question what Court-fee the 2nd defendant should be required to pay to this Court, and Subramania Iyyer and Boddam, JJ., on the ground that she need pay Court-fee only as on a suit for possession on the ground that the claim for compensation for improvements was only incidental. As an obiter dictum they expressed the opinion that 'even where the only question raised is as to the value of the improvements, the appellant should not foe called upon to pay any fee other than that payable in a suit for possession of land.' Ten years later, in 1909, a somewhat similar question eame before Munro and Abdur Rahim, JJ., in Sekharan Nair v. Kongot Echaran Nair (2) a Malabar case, that was a suit to redeem a kanam. It was dismissed by the District Munsif; but on appeal the Subordinate Judge made a decree for redemption on payment of the kanam amount and compensation for improvements. The defendants appealed to this Court disputing the right to redeem and also claiming more for improvements than had been allowed by the Subordinate Judge but paid Court-fee only on the amount of the kanam. It was held that for the purpose of Court-fee the subject-matter of the appeal was the right gof redemption and Court-fee need be paid only on the amount of the kanam. In connection with that case, however, it must be noticed that the method of calculating the Court-fee on a suit for redemption is explicitly provided for in Section 7 ix of the Court Fees Act. But in Reference under Court Fees Act, 1870 29 M.367; 16 M.L.J. 287, it had already been decided that in appeal in a redemption suit, where the question in dispute was no longer the right to redeem but only the amount to be paid for redemption Court fee need be paid only on the latter amount. Ia 1921 in In re Parkodi Achi (5) Kumara swami Sastriar, J., sitting alone had to deal with a case in which a plaintiff having obtained a decree as reversiener to her father's estate for the recovery of land alienated by her mother while a widow appealed against the amount which she was ordered to pay to the alienees. The learned Judge decided in that case that the plaintiff must pay for her appeal an ad valorem fee on the amount which she had been ordered to pay and for which she disputed, her liability. Incidentally he expressed his disagreement with the decision in Reference under Court Fees Act, Section 5 (1). Two years ago in a Malabar case In re Tiruvangalath Nellyoton Paidal Nayar (6) where a plaintiff who had got a decree for the redemption of a kanam, appealed against the amount which he had been ordered to pay as compensation for improvements, Phillips and Ramesam, JJ., decided that he must pay Court-fee on the amount of compensation which he disputed. The effect of these cases is the obiter dictum in Reference under Court Fees Act, Section 5 (1) that 'even where the only question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land' has not been adopted in later cases.
But the actual decision in Reference under Court Fees Act, Section 5 (1) that a defendant disputing on appeal both the plaintiff's title to recover and the amount of compensation to be awarded need pay Court-fae only as on a suit for recovery of possession, has never been overruled. It is not clear to me whether in In re Porkodi Achi (5) Kumarasawmi Sastri, J., intended to express his dissent both from the obiter dictum and from the actual decision in Reference under Court Fees Act, Section 5 (1). If the later was his intention, his opinion was itself an obiter dictum. Second Appeal No. 1266 of 1924, in which my learned brother himself came to a decision contrary to that in Reference under Court Fees Act, Section 5 (1) he has himself dealt with in the judgment just pronounced. If I may say so with respect, it is not difficult to find arguments against the decision in Reference under Court Fees Act, Section 5 (1). But that decision has stood for nearly 30 years and has been followed in almost innumerable cases in Malabarand in this Court. I agree that we must continue to follow it. I do not think it neeessary nor, in my opinion, would it be proper in a fiseal matter of this sort to refer the question, as has been suggested, to a Full Bench at this date. I agree that the preliminary objection must be overruled.
On the question whether the defendants are entitled to any compensation in this case I do not think it necessary to decide whether a tenant-at-will not liable to pay rent is as Mr. Sitarama Rao contends, a tenant within the meaning of that word as used in the Malabar Compensation for Tenants' Improvements Act, On consideration I am inclined to agree with Mr. Sitarama Rao's contention that the defendants were tenants-at-will of the hut 'entrusted' to them by the plaintiff of which they appear to have been in exclusive possession. But of any part of the pramba beyond the site actually covered by tha hut the learned Subordinate Judge has found that they were no more than licensees. Even though there is evidence that the defendants put up a eadjan fence round part of the pramba adjoining the hut, it was open to the Subordinate Judge to find that, though allowed to use the enclosed part of the pramba, the defendants had no exclusive possession of it. His finding of fact is that it was only the hut which was 'entrusted' to the defendants. The evidence clearly shows that the new house which the defendants have built covers a considerably larger area than the site of the hut. Even if they were tenants of the hut, which they have now covered with their new house; nor can it be reasonably suggested that in good faith they believed themselves to be tenants of that area. It has not been suggested before us that the part of the house which is on the site of the old hut has been constructed in such a way that it could stand if separated from the part which extends beyond the site of the hut. I agree, therefore, that the house is not a tenant's improvement for which the defendants can claim compensation. This result it may be remarked cannot be regarded as harsh towards the defendants as it appears that they built the house hurriedly in spite of the protests of the plaintiff, who was an old man, while his sons were temporarily absent. I may add that I do not wish on this occasion to express any opinion whether the Malabar Compensation for Tenants' Improvements Act applies only to agricultural holdings and Kudiyiruppus, as held by Jackson, J., in Koottayi Chattukutty v. Thottathil Kunhappu (7).
I agree that this appeal should be dismissed with costs but that the defendants should have three months from this date for removing the materials of the new house.