JUDGMENT : K.T. Koshi, J. This Second Appeal is by the defendant. The suit is one for eviction on foot of a registered lease-deed, Ext. A, dated 25.4.1103 and the appellant's complaint in Second Appeal is that the suit is premature. Ext. A provides that the lease shall last for a period of 12 years and according to the appellant, it contains a further provision for renewal for another period of 12 years at his option. The point is no doubt interesting, but for reasons which we shall presently state, we feel constrained not to consider it. 2. The question whether there is a provision for renewal in the lease deed is no doubt a question of construction of the document. Assuming there is such a provision whether that will avail as a defence to the present suit must depend on the subsequent conduct and acting of the parties. That is a question of fact and we do not find the point that the suit is premature taken either in the first court or in the second court. It is in the memorandum of appeal to this court, that the point is first mentioned. The written statement contains a plea that the suit is not maintainable, but why or how the suit is not maintainable is not seen stated at all. Presumably it refers to the alleged want of title in the plaintiffs. There is no issue raised as to whether the suit is premature or not, nor any discussion in the trial court's judgment with reference to it. The memorandum of appeal to the lower appellate court is also silent with regard to this point, nor was the point raised at the hearing of the appeal before that court. In these circumstances, especially when the point involved cannot be considered to be a point of mere law, it would not be proper to permit the appellant to agitate this point, for the first time, in the Second Appeal. To permit it would work hardship on the opposite side. 3. The respondent's learned Advocate pointed out that the relief was not valued in the second appeal or any court-fee paid with respect to it. That objection is one more of form than of substance. To permit it would work hardship on the opposite side. 3. The respondent's learned Advocate pointed out that the relief was not valued in the second appeal or any court-fee paid with respect to it. That objection is one more of form than of substance. Had the memorandum of appeal stated that as the two relief’s claimed, viz., the dismissal of the suit and the enhancement of compensation are relief’s claimed in the alternative and that court fee is paid for the relief demanding higher valuation there would have been no occasion at all to raise the point. The court-fee now paid is more than what the plaintiff paid in the suit with respect to the relief of eviction. The first ground however is more fundamental and we have to uphold it. 4. The case in 1949 T.L.R. 174 to which our attention was invited by the appellant's learned advocate itself states that while the reports (Travancore) are replete with the case law bearing on the question of option for renewal to a tenant or a mortgagee, much effort is needed to reconcile the various aspects developed in many of the cases. The conduct of the parties after the expiry of the original period has always been regarded as an almost decisive circumstance as to the tenant's right to keep the holding for a further period and in a case whether the right to remain in possession for that period is not taken at the trial, the plaintiff is not expected to lead evidence to negative a claim not put forward. These circumstances, compel us to disallow the appellant to raise this point here. As no other point is urged in the Second Appeal, it fails and it will stand dismissed with costs. 5. The respondents have preferred a memorandum of cross-objections, in this Second Appeal. It raises two points (i). Their right to set off barred arrears against the value of improvements awarded to the appellant; and (2) Reduction of the value thereof as fixed by the lower appellate court, In the suit, the plaintiffs claimed arrears from 1107 onwards, and they also wanted to have the same set off against the value of improvements found due to the defendant. The trial court summarily rejected the claim, on the ground that there is no provision for set off in the lease deed. The trial court summarily rejected the claim, on the ground that there is no provision for set off in the lease deed. At the same time it found that the plea raised by the defendant, that the arrears have been discharged, was not made out. The lower appellate court negatived the claim for set-off for a different reason. That court thought that the decision in 21 T.L.J. 781 stood in the way of the land-lord's right to claim a set-off of barred arrears against the value of improvements awarded to the tenant recognised in the earlier decisions such as 20 T.L.J. 1138 and the case referred to there. In the case in 32 T.L.J. 350 no question of any set-off of barred arrears against the value of improvements arose as the suit there was one merely to recover arrears and not for the recovery of property with arrears. The case has no bearing on the present question and the appellant's learned Advocate conceded that the Courts below were wrong in their decision on this point. The memorandum of objections must therefore succeed on this point, and reversing the two lower courts decision we hold that the respondents are entitled to have the arrears claimed by them in the suit, set-off against the value of improvements awarded to the appellant. 6. On the second point viz., the reduction of compensation, three matters were brought to our notice. The Commissioner deputed by the court to value the improvements, had assessed the value of 21 bearing cocoanut trees at Rs. 490-2-12. The trial court for reasons of its own, reduced the amount by half. The appellate court however gave effect to the Commissioner's valuation and the complaint raised is that the Commissioner had made a mistake in fixing the value of cocoanut trees in that he did not make any deduction for droppings for the mature cocoanuts he found on the trees at the time of his inspection. This has been held to be a wrong practice in the case reported in 15 T.L.T. 717, and the appellant's learned Advocate did not dispute that the Commissioner committed an error in this respect. When this error is rectified, the value the defendant-appellant would be entitled to for the said 21 cocoanuts trees would only be Rs. 384 and the lower appellate court's decision is accordingly modified. Instead of Rs. When this error is rectified, the value the defendant-appellant would be entitled to for the said 21 cocoanuts trees would only be Rs. 384 and the lower appellate court's decision is accordingly modified. Instead of Rs. 490-2-12, the appellate will get only Rs.384 towards the value of these cocoanut trees. 7. As for the two other matters raised in connection with the value awarded for improvements they do not find mention in the memorandum of cross-objections nor is any court-fee paid with respect to them. We consider it unfortunate the arguments before us should have proceeded without that fact being noticed. Ground No. 2 in the memorandum or cross-objections is explicit that the respondent's complaint in Second Appeal regarding the value of improvements awarded to the appellant relates only to the enhancement made by the lower palliate court to the trial court's valuation and not for the value awarded by that court where that court only affirmed the trial court's decision. No whisper is made in the said memorandum regarding the value awarded for the building or for the jackfruit trees. Court-fee paid is also only with reference to the difference between the value as fixed by the two courts for the bearing cocoanut trees. In these circumstances, we do not find our way to consider the two further points raised before us under head 2 above. The memorandum of objection succeeds on the two points raised by it, and normally we should have allowed the respondent' full costs on it. In view of what we have stated in paragraph 7 above we award them only one-half costs with respect to it. The appellant will bear his costs on the same. Appeal dismissed.