Judgment :- 1. This second appeal arises out of a suit for redemption of a mortgage. By Ext. Al dated 22-7-1943 plaintiff mortgaged to the defendants three items of properties of which he handed over possession of one to the mortgagees retaining possession of the other two with him. After the expiry of the term of the mortgage he deposited the mortgage amount in O.P. No. 42 of 1948 of the District Munsiff's Court, Taliparamba, and sought redemption of the mortgage but the defendants declined to accept the amount contending that they were entitled to fixity of tenure and value of certain improvements effected by them. The O. P. was, therefore, dismissed; and so, the plaintiff brought the suit, which has given rise to this second appeal, for redemption of the mortgage and recovery of possession of the property of which possession had been given to the mortgagees. This was the third item in Ext. Al and the plaint schedule. It is a shop building and the premises appurtenant thereto, the site of the building and the premises together measuring 14 x 41/2 koles (the length of the kole is given as 6 feet at the top of the column in the schedule in Ext. Al for measurements) 2. The defendants' main contention in the suit was that they were entitled to get value of improvements, and they claimed Rs. 1000/- on account of the improvements to the building made by them. These alleged improvements consist of certain alterations made and amenities added to the shop building. A commissioner deputed by the first court assessed the value of improvements at Rs. 345-9-10, Ext. Cl being his report. Deducting a sum of Rs. 9/- from this amount the first court awarded Rs. 336-9-10 to the defendants as value of improvements and directed the plaintiff to deposit in court that amount also in addition to the amount of Rs. 3000/- which he had already deposited on account of the mortgage amount. 3. Against the first court's decree defendants 2 to 4 filed an appeal in the District Court of North Malabar claiming enhancement of the value of improvements. since his case in regard to the value of improvements was that the mortgagees were not entitled to any value of improvements under law, plaintiff also filed a memorandum of objections. 3. Against the first court's decree defendants 2 to 4 filed an appeal in the District Court of North Malabar claiming enhancement of the value of improvements. since his case in regard to the value of improvements was that the mortgagees were not entitled to any value of improvements under law, plaintiff also filed a memorandum of objections. The learned District Judge at first dismissed the appeal and the memorandum of objections holding that they had abated. In second appeal the High Court of Madras set aside the decision of the District Judge and remanded the case to the District Court for hearing and fresh disposal; and after the remand, the District Judge dismissed the defendants' appeal and allowed the plaintiff's memorandum of objections holding that the improvements in question would not fall under S.63A (2) of the Transfer of Property Act and were not such as to make the mortgagor liable to pay, or the mortgagees entitled to get, the costs of the same under S.63A(1) and (2). The case of the defendants was that they were entitled to get value of improvements not only under the Transfer of Property Act but also under the Malabar Compensation for Tenants Improvements Act, I of 1900, and that the parties had further entered into an agreement by which the mortgagees were authorised to effect the improvements in question. At the time of hearing in the District Court it was conceded by the appellants' counsel that the provisions of the Malabar Compensation for Tenants Improvements Act would not apply to the case. so far as the agreement alleged was concerned, the learned District Judge found that there was no agreement as contended by the defendants. He held further that the deposit of the mortgage amount made by the plaintiff was proper and the refusal of the defendants to accept the same improper and that they were therefore liable to the plaintiff for the mesne profits of plaint item 3 and also to pay his costs. Defendants have, therefore, filed this second appeal. 4. He held further that the deposit of the mortgage amount made by the plaintiff was proper and the refusal of the defendants to accept the same improper and that they were therefore liable to the plaintiff for the mesne profits of plaint item 3 and also to pay his costs. Defendants have, therefore, filed this second appeal. 4. The points pressed at the time of hearing in this court were: (I) that the mortgagees were entitled to get the value of the improvements under the Malabar Compensation for Tenants Improvements Act, (2) that the concession made by the defendants' counsel in the lower appellate court was therefore wrong and the District Judge should not have acted upon it; and (3) that in any event the District Judge's direction regarding mesne profits and costs should not be sustained. s.3 and 5 (1) of the Malabar Compensation for Tenants Improvements Act read as follows: "3. In this Act, unless there is something repugnant in the subject or context, (1) "tenant", with its grammatical variations and cognate expressions, 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 thereof, or who, with the bonafide intention of attorning and paying the customary rent to the person entitled to cultivate or let wasteland, but without the permission of such person, brings such land under cultivation and is in occupation thereof as cultivator; (2) "ejectment" includes redemption or recovery of possession of land mortgaged: (3) "improvement" 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". "5. (1) Every tenant shall on ejectment be entitled to compensation for improvements which have been made by him, his predecessor-in-interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage-money, (if any), be entitled to remain in possession until ejectment in execution of a decree or order of Court". The appellants' contention is that as the term "tenant" includes, by virtue of its definition in s.3 (1), a mortgagee also, they, as mortgagees, are entitled under s.5 (1) read with s.3 (2) to get the value of the improvements made by them in item 3 at the time of the redemption of the mortgage. The respondent's answer to this contention is that the definition of the term "tenant' in s.3 (1) would not take in a lessee or mortgagee of a building, especially of a building let or mortgaged for commercial and business purposes, and that as plaint item 3 is a shop building, with the premises appurtenant thereto, mortgaged for commercial and business purposes, the provisions of the Malabar Compensation for Tenants Improvements Act will not apply to it. 5. Although plaint item 3 is mentioned in the schedule in Ex. Al as a paramba with a tiled two-storied building and other structures in it, from the measurements and other descriptions given in the schedule as well as from the recitals in the document and the evidence given by defendant 3 as Dw.1, it is abundantly clear that it is a shop building and the premises appurtenant thereto, which was actually used at the time of the mortgage for commercial and business purposes and is being so used afterwards also. so far as item 3 was concerned the mortgage was therefore a mortgage of a shop building for commercial and business purposes. 6. Now it is only "tenants" who are entitled to invoke the benefit of the Malabar Compensation for Tenants Improvements Act; and although the definition of the term "tenant" given in s.3 (1) of the Act does not purport to be an exhaustive definition, only lessees, mortgagees, occupiers, etc., in possession of land have been enumerated in that section as coming within the meaning of the term "tenant". There is no express mention in the section of lessees, mortgagees or occupiers of buildings as included under that term. There is no express mention in the section of lessees, mortgagees or occupiers of buildings as included under that term. The question therefore naturally arises for consideration whether it is only in the cases of leases, mortgages and other transactions of land that the provisions of the Malabar Compensation for Tenants Improvements Act can be invoked or whether those provisions will apply also to leases and mortgages primarily of buildings as distinguished from land; that is to say, whether the Act will apply to transactions entered into on account of the buildings alone and for their use, in which if any land is involved such land is merely appurtenant to the buildings and necessary for their proper use. 7. To start with it cannot be denied that the omission to expressly include lessees and mortgagees of buildings in s.3 (1) is a circumstance which lends support to the contention that the Malabar Compensation for Tenants Improvements Act does not apply to cases of leases and mortgages primarily of buildings. The earliest case in which this question came up directly for decision, referred to at the Bar was Chathukutty v. Kunhappan, AIR. 1927 Mad. 776. In that case Jackson, J., held that the tenant of a shop in Malabar would not come within the purview of the Malabar Compensation for Tenants Improvements Act. The discussion of the question opens with the sentence: "I think it has invariably been held in Malabar that the Act applies to agricultural holdings and also what are known as kudiyiruppu or vacant site available for buildings and does not apply to sites which are already mainly occupied by houses or shops". "The short point for determination in this appeal is whether the tenant of a shop in Malabar comes within the purview of Act I of 1900, Madras: curiously enough the question appears to be res Integra "and the conclusion of the learned judge at the end of the discussion is: It was contended by the appellants' counsel that the authority of this decision has been shaken considerably by three subsequent cases, namely, George v. Thithiumma A.I R.1931 Mad. 363, Avaru v. Asi Bai A.I. R.1932 Madras 8, and Seshan Pattar v. Asambi Umma (1955-II MLJ 227), and that those cases will be sufficient warrant for holding that the Malabar Compensation for Improvements Act applies not only to agricultural tenancies but also to leases and mortgages of buildings. 8. To correctly understand the decisions in the three cases referred to by the appellants' counsel and ascertain how far they go against the opinion expressed by Jackson, J., in Chathukutty v. Kunhappan that the Malabar Compensation for Tenants Improvements Act does not apply to sites which are already mainly occupied by houses or shops, it will be helpful to give a short resume of the cases referred to at the Bar in which the question of the applicability of the said Act has been considered. 9. The earliest case after Chathukutty v. Kunhappan referred to at the Bar was Pathumna v. Mohideen (A.I.R.1928 Mad. 929) decided by Srinivasa Ayyangar and Reilly, JJ. In that case a but had been entrusted to the defendants and on the site of that but and some adjoining space they had erected a pucca building and claimed value of improvements on account of it. The District Judge refused the value of improvements on the ground that they were not tenants but only licensees and had no authority to construct the building. After holding that there was no ground for disturbing the finding that the defendants were licensees, Srinivasa Ayyangar, J., observed further: "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. It is taking advantage of their being placed in occupation of the building that they appear to have put up substantial structures in respect of which they are now claiming compensation. Having regard to these findings it is unnecessary to discuss the matter at any great length. It is taking advantage of their being placed in occupation of the building that they appear to have put up substantial structures in respect of which they are now claiming compensation. Having regard to these findings it is unnecessary to discuss the matter at any great length. The learned counsel for the respondents has also drawn my attention to the decision in the case of K.Chathukutty v. T. Kunhappan by Jackson, J. It has been held in that case that the Malabar Tenants Improvements Act applies only to agricultural holding and to building sites. In these circumstances, we are not satisfied in this respect that the judgment of the learned subordinate Judge who was himself a gentleman of the West Coast was wrong." Reilly, J., also concurred in the finding that the defendants were only licensees, and since that finding was sufficient in his opinion to dispose of the second appeal he did not express any opinion on the question of the applicability of the Malabar Compensation for Tenants Improvements Act, saying: "I may add that I do not wish on this occasion to express any opinion on the question whether the Malabar Compensation for Tenants Improvements Act applies only to agricultural holdings and kudiyiruppus as held by Jackson, J., in Chathukutty v. Kunhappan" 10. subsequently, the correctness of the opinion expressed Jackson, J., in Chathukutty v. Kunhappan that the Malabar Compensation for Tenants Improvements Act applies only to agricultural holdings and vacant kudiyiruppu sites was challenged before Anantakrishna Aiyer, J., in Sebju sahib v. Malabar District Board (AIR 1930 Mad. 16) in which the lessee of a roadside poromboke land claimed value of improvements on account of a building constructed by him in it. Anantakrishna Aiyer, J., said in that case: "No new and further materials have been placed before me to induce me to say that the decision in Chathukutty v. Kunhappan requires reconsideration No grounds have been made out why I should not follow the decision of this court reported in Chathukutty v. Kunhappan". George v. Thithi Umma (AIR 1931 Mad. 363), relied upon by the appellants' counsel, was also decided by Reilly and Anantakrishna Aiyer, JJ. The findings of fact in that case were that a vacant kudiyiruppu had been let to the tenant and that he had built a house on it. George v. Thithi Umma (AIR 1931 Mad. 363), relied upon by the appellants' counsel, was also decided by Reilly and Anantakrishna Aiyer, JJ. The findings of fact in that case were that a vacant kudiyiruppu had been let to the tenant and that he had built a house on it. Agreeing with the opinion expressed in Chathukutty v. Kunhappan that the Madras Compensation for tenants Improvements Act would apply also to what are known as kudiyiruppu or vacant site available for buildings, Reilly, J., held that the tenant was entitled to get the value of improvements, making it clear at the same time that he was expressing no opinion as to whether the Act is confined to agricultural holdings and kudiyiruppu. He said: "In my opinion the learned District Judge was right in finding that what was let to the tenant was a kudiyiruppu, in which he had built a house. The only question then is whether, that is a case to which the Malabar Compensation for Tenants Improvements Act applies. It has sometimes been contended that that Act applies only to agricultural holdings. That question was recently considered by a Bench of this court in s.A. No. 1532 of 1925 and alter an examination of the Act, the previous law and all the relevant cases it was decided that the Act applies not only to agricultural tenancies but also to building leases. That would cover the present case. Indeed it would more than cover the present case, in which it is not necessary to go so far. In Chathukutty v. Kunhappan Jackson, J., expressed the opinion that the Act was confined to agricultural holdings and kudiyiruppus. The decision of the Bench in s. A. No. 1532 of 1925, though it goes further, agreed with Jackson, J.'s view that the Act applies to kudiyiruppus, about which, speaking for myself, I have never felt any doubt. That being so, in the present case it appears to me that the learned District Judge was right and that defendant 6 is entitled to compensation for this particular house. That being so, in the present case it appears to me that the learned District Judge was right and that defendant 6 is entitled to compensation for this particular house. I may add that I do not wish on this occasion to express any opinion whether a tenant, to whom a building is let, can claim compensation for any improvements made to that building on the ground that the building itself must stand upon land and therefore he is a tenant of land within the meaning of the Act. That is a question into which it is unnecessary to go at present". Anantakrishna Aiyer, J., also concurred in the opinion that it was not necessary to consider in that case whether the Act would apply to a case in which a building had been let to the tenant, observing: "It is not necessary in this case to go into that larger question, since the present is a case of a lease of vacant kudiyiruppu as described already and a Bench of two learned judges of this court has very recently held in s. A. 1532 of 1925 that the Act applies to leases of vacant kudiyiruppus". In Avaru v. Asi Bai (AIR 1932 Mad. 8) a Bench of the Madras High Court consisting of Wallace and Madhavan Nayar, JJ., considered the question at length, and after reviewing all the decisions till then held that the operation of Act I of 1900 (Madras) was not restricted to agricultural tenancies and that it would apply to building leases as well (see page 15, Vol. 1). At page 11 of the report the learned judges said: "In our opinion Act I of 1900 applies to non-agricultural tenants such as lessees of vacant sites leased for building purposes", and at page 14 they said; "In the present case the questions whether the tenant of a house leased to him comes within the Act or not and whether the scope of the Act is restricted to agricultural lands and vacant sites do not arise for consideration and we express no opinion on them." 11. Thus, till 1932 there was only one case in which the question had directly come up for decision, whether the Madras Compensation for Tenants Improvements Act would apply to the case of a lease of a house or shop, as distinguished from the lease of a vacant site, and in that case, i. e., Chathukutty v. Kunhappun (1927 Mad. 776) the decision was that the Act would not apply to houses and shops, i. e., sites mainly occupied by houses and shops at the time of the lease. In the decisions in the other cases it was expressly stated that the learned judges were not expressing any opinion on the question. The question again came up directly for decision only in Badshah sahib & Co. v. Kovilamma (AIR 1938 Mad. 171) which was decided by a Bench consisting of Venkitasubba Rao and Horwill, JJ. The decision in that case was that the benefit conferred by the Act does not extend to tenants of buildings, houses or shops. At page 1-71 of the report it is said: "The word 'tenant' is defined as including a person, who as lessee, etc. of land, is in possession thereof. Here is a clear indication that the Legislature did not intend that buildings or houses or shops should come within the purview of the Act, and the argument is fanciful that because a building must necessarily stand upon land, therefore it comes Within the scope of the Act. The expression in the Act must receive its natural meaning and we are not prepared to hold that the benefit conferred by it extends to tenants of building's". All the prior cases were also referred to and the opinion in Chathukutty v. Kunhappan that the Act does not apply to houses and shops was concurred in Badshah sahib & Co. v. Kovilamma. This rase was in its turn referred to and approved by another Division Bench of the Madras High Court in Abdul Kader v. Velu Nayar (AIR 1946 Mad. 318) wherein the judgment of the court was pronounced by Leach, C. J. The decision in that case was: "We hold that the Act does not extend beyond agricultural leases and lessees of vacant sites let for the purpose of building dwelling houses thereon". 12. 318) wherein the judgment of the court was pronounced by Leach, C. J. The decision in that case was: "We hold that the Act does not extend beyond agricultural leases and lessees of vacant sites let for the purpose of building dwelling houses thereon". 12. The last case referred to at the Bar was Seshan Pattar v. Asambi Umma (1955-II-MLJ 227) which was decided by Govinda Menon, J. The observations in that case germane to the present question are as follows: "In Avaru v. Asi Bai, a Bench of this Court consisting of Wallace and Madhavan Nair, JJ., after considering the entire previous case law, came to the conclusion that the Act applies not only to agricultural leases but to building leases as well, that is, leases of vacant lands for building purposes. This judgment was followed by another Bench in Paredath Chori George v. Thithi Umma. It has to be mentioned in this connection that the site on which the building was put up in Avaru v. Asi Bai was not a residential building site but a vacant site in the town of Cochin intended for the purpose of being used as a shop. The same was the case in Paredath Chori George v. Thithi Umma. All the learned judges who took part in these cases were of the opinion that if a vacant piece of land is let in Malabar for putting up a building, whether it be residential or otherwise, the tenant is entitled to the value of the improvements. A somewhat different note seems to have been struck in the judgment reported in Abdul Kader Rowther v. Velu Nayar where the learned judges have interpreted Avaru v. Asi Bai as laying down that building leases do not mean leases of any land for any building but only for building of dwelling houses. In my opinion there is no warrant for that proposition. It has throughout been understood in Malabar that if a vacant land is let either on Verumpattom or Kanam right or any other term any tenant who puts up either a residential building or any other building, is entitled to the value of the improvements. It is too late in the day to unsettle the law which has been understood for more than 50 years. It is too late in the day to unsettle the law which has been understood for more than 50 years. I do not think that I am bound by the decision in Abdul Kader Rowther v. Velu Nayar which does not correctly apply the earlier Bench decisions in Avaru v. Asi Bai and Paredath Chori George v. Thithi Umma especially as regards the law applied to the part of the country with which the learned judges who decided Abdul Kader Rowther v. Velu Nayar and Paredath Chori George v Thithi Umma were much more familiar than the learned Chief Justice who delivered the judgment in Abdul Kadar Rowther v. Velu Nayar". 13. Thus, even in the last mentioned case, in which Govinda Menon, J., sitting as a single Judge refused to follow the Division Bench decision in Abdul Kader v. Velu Nayar (1946 Mad. 318) that the Malabar Compensation for Tenants Improvements Act does not extend to leases of vacant sites let for the purpose of building dwelling houses, the decision does not go to the extent that the Act would apply to leases of buildings alone as distinguished from land or leases of sites already mainly occupied by houses or shops at the time of the lease. The learned judges who decided Avaru v. Asi Bai, which case was followed by Govinda Menon, J., in Seshan Pattar v. Asambi Umma, had expressly left open the question whether the Act would apply to a lease of a house as such, as distinguished from land, and whether its application was restricted to agricultural lands and vacant sites. (see passage from page 14 of A.I.R. 1932 Mad. 8, extracted in Para.10 above). In Seshan Pattar v. Asambi Umma also the value of improvements claimed and awarded was in respect of a building constructed on a vacant site leased to the defendant. Therefore the authority of learned judges "more familiar with the law applicable to the part of the country than the learned Chief Justice who delivered the judgment in Abdul Kader Rowther v. Velu Nayar" cannot he invoked in support of the proposition that the Malabar Compensation for Tenants Improvements Act would apply to leases of houses and other buildings, that is, sites already mainly occupied by houses or shops at the time of the lease. All that the learned judges admittedly familiar with the Malabar law have said is only that the operation of the Act is not restricted to agricultural tenancies and applies also to building leases. Jackson, J., was not a judge unfamiliar with the conditions of Malabar or Malabar Law and his opinion that the Malabar Compensation for Tenants Improvements Act does not apply to sites which are already mainly occupied by houses or shops is, in our opinion, if we may say so with respect, entitled to very great weight. He has nowhere said in Chathukutty v. Kunhappan that the application of the Act should be confined to agricultural tenancies. On the other hand his dictum was that the Act applied to agricultural tenancies and kudiyiruppus or vacant sites available for buildings and did not apply to sites already mainly occupied by houses or shops - that is to say, the Act would apply to agricultural tenancies and building leases and would not apply to leases of houses and shops. It has hot been shown to us that any judge more familiar with the conditions of Malabar and the law applicable to that part of the country has said anything further than that the Act would apply to agricultural tenancies and building leases or contradicted the dictum of Jackson, J., that it would not apply to leases of houses and shops. No doubt, whereas on the first part of the opinion expressed by Jackson, J. in Chathukutty v. Kunhappan and extracted in Para.7 above it would appear that the Act would apply to all leases for building purposes irrespective of the question whether the building to be put up was a dwelling house or shop, the decision in Abdul Kader v. Velu Nayar (1946 Mad. 318) was that it would apply only to agricultural leases and leases of vacant sites let for the purpose of building dwelling houses, and thus, Leach, C. J., had gone in that case beyond what Jackson, J., had said in Chathukutty v. Kunhappan. 318) was that it would apply only to agricultural leases and leases of vacant sites let for the purpose of building dwelling houses, and thus, Leach, C. J., had gone in that case beyond what Jackson, J., had said in Chathukutty v. Kunhappan. But the question answered in the second part of the opinion expressed by Jackson, J., in Chathukutty v. Kunhappan, namely, that the Act does not apply to sites which are already mainly occupied by houses or shops, i. e., leases primarily of houses or shops, did not arise for consideration in Abdul Kader v. Velu Nayar or in any of the cases relied upon by the appellants' counsel including Seshan Pattar v. Asambi Umma (1955-11- M.L.J 227). In this connection it has also to be stated that certain discrepancies appear to have crept into the observations made by Govinda Menon, J., in Seshan Pattar v. Asambi Umma. In the passage from his judgment appearing at page 227 of 1955-11 M.L.J. extracted in Para.12 above, the learned judge has said: "It has to be mentioned in this connection that the, site on which the building was put up in Avaru v. Asi Bai was not a residential site but a vacant site in the town of Cochin intended for the purpose of being used as a shop". But it is specifically stated in the third sentence of the judgment in Avaru v. Asi Bai that "the appellant obtained the property which was a vacant site on lease for erecting a house for residential purposes" Govinda Menon, J., has said further in the same passage: "The same was the case in Paredath Chori George v. Thithi Umma" meaning thereby that in that case also what was let was vacant site intended for the purpose of putting up a building to be used as a shop. But it is said in the judgment of Anantakrishna Aiyer, J., in that case: "The learned District Judge's finding is that the present is a case of a lease of vacant kudiyiruppu (house site) to the 6th defendant to build a house thereon". This finding of fact was accepted as correct both by Reilly and Anantakrishna Aiyer, JJ. But it is said in the judgment of Anantakrishna Aiyer, J., in that case: "The learned District Judge's finding is that the present is a case of a lease of vacant kudiyiruppu (house site) to the 6th defendant to build a house thereon". This finding of fact was accepted as correct both by Reilly and Anantakrishna Aiyer, JJ. Reilly, J., has said at page 364 of A.I.R. 1931 Mad.: "In my opinion the learned District Judge was right in finding that what was let to the tenant was a kudiyiruppu in which he had built a house". 14. The only other case brought to our notice in which the question specifically came up for consideration was Badsha sahib & Co v. Kovilamma (A.I.R.1938 Mad. 171) and there, it was held that the Act would not apply to tenants of buildings, houses or shops, we are in respectful agreement with the reasons given in Badsha sahib & Co. v. Kovilamma for the said conclusion especially with what has been expressed in the passage extracted in Para.11 above from page 171 of A. I. R.1938. 15. We, therefore, hold that s.5 of the Malabar Compensation for Tenants Improvements Act entitling tenants to obtain compensation for improvements is not applicable to leases or mortgages of building such as houses and shops-that is to say, when a lease is primarily of a shop or residential house and if any land is involved in it, such land is only appurtenant to that building and necessary for its proper use, the lessee or the mortgagee will not be entitled to get compensation for improvements under the provisions of the Malabar Compensation for Tenants Improvements Act. His rights, if any to get compensation for improvements must in such cases depend upon other provisions of law or agreement of parties. In this case the agreement pleaded as also the right claimed under the Transfer of Property Act have been found against by the lower appellate court; and nothing can be urged against those findings. The finding that there was no agreement as alleged by the defendants is a finding on a pure question of fact based on the evidence in the case and cannot therefore be disturbed in second appeal. The finding that there was no agreement as alleged by the defendants is a finding on a pure question of fact based on the evidence in the case and cannot therefore be disturbed in second appeal. From the commission report it is clear that the so called improvements consist merely of alterations made to the shop building and additional amenities provided thereto for the mortgagees' convenience which do not come within the class of improvements mentioned in S.63A(2) of the Transfer of Property Act. 16. In the view that we have taken regarding the applicability of the Malabar Compensation for Tenants Improvements Act to leases of houses and shops the concession made by the appellants' counsel in the lower court cannot be characterised as wrong or improper, and the lower appellate court was therefore right in acting upon it. 17. since the Malabar Compensation for Tenants Improvements Act is not applicable to this case and defendants are also not entitled to get value of improvements under the Transfer of Property Act or any agreement, their refusal to accept the mortgage amount tendered by the plaintiff was improper and so they are liable both for mesne profits and costs of the suit. 18. In the result, the decree of the lower appellate court is confirmed and this second appeal is dismissed with costs.