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1959 DIGILAW 249 (KER)

Gangadharan v. Lekshmanan

1959-08-19

ANNA CHANDY, SANKARAN

body1959
Judgment :- 1. This appeal by the first defendants is directed against the lower court's order, fixing the amount of compensation for the improvements effected in the suit property, subject to the preparation of the earlier commission report, Ext. P1. The right of the first defendant to get the value of the fresh improvements has been upheld by this Court in the judgment in A. S No. 309/1957. The items of fresh improvements were valued in Ext. D1 report and Ext. D2 mahazar prepared by the Commissioner. The Commissioner, after making due allowances, fixed the total value of all the items of fresh improvements at Rs. 1,417 nP. 44. The lower court reduced this amount to Rs. 666 nP. 56. In this appeal the first defendant claims the full amount found by the Commissioner. 2. Among the items of improvements, there are 3 buildings including a temporary shed and a weaving shed. The temporary shed has been valued at Rs. 16/-. This cannot be said to be a substantial improvement adding to the value of the holding. Hence the decree holder cannot be compelled to pay for it. The first defendant will be free to remove this temporary shed. Its value will be deducted from the compensation payable by the plaintiff. 3. Then there is the weaving shed. This cannot also be said to be a substantial improvement adding to the value of the holding, nor can it be said to be necessary or advantageous for the normal use of the property. This shed was put up obviously for the convenience of the defendant to carry on his weaving business. Such a shed will not come within the categories of buildings which are presumed to be improvements under clause (a) of S.3 of Act XXIX of 1958. The plaintiff is not bound to accept this shed and to pay for it. The first defendant is therefore allowed to remove this shed. It value will be deducted from the compensation payable by the plaintiff. 4. The 3rd building is a residential building, and it is undoubtedly suit able to the holding and is an item of real improvement. The commission report shows that it was just completed and that the plastering of the walls remained to be done. It value will be deducted from the compensation payable by the plaintiff. 4. The 3rd building is a residential building, and it is undoubtedly suit able to the holding and is an item of real improvement. The commission report shows that it was just completed and that the plastering of the walls remained to be done. The building is only less than 2 years in age and hence nothing can be deducted on account of depreciation on the ground that it is an old building. The value fixed by the Commissioner for this building is therefore accepted as correct. 5. Lastly, there is the value for the plantations. Among the plantations there are a few coconut trees. From the age of these trees, as mentioned in the commission report, Ext, D1, and as sworn to by the Commissioner, it is clear that these trees were all planted after the date of the first commission report, Ext. P.1. It has also to be noted that the report, Ext. D1, has been attested by the plaintiff also. There was no justification for the lower court to ignore all these circumstances and to hold that the coconut trees mentioned in Ext. Dl are the trees covered by the first report, Ext. P.1. We hold that the first defendant is entitled to get the value of the coconut trees mentioned and valued in Ext. Dl. Regarding the other trees also, the lower court has erred in reducing the value of some and enhancing the value of the others, without any proper data to support his conclusions. The lower court should not have interfered with the commission report arbitrarily and on the strength of mere speculations. Another fundamental error committed by -the lower court was in holding that no value need be paid for the trees of spontaneous growth. Under the new Act, Act XXIX of 1958, trees of spontaneous growth have also to be taken into account in fixing the compensation payable to the tenant. Accordingly, we hold that the Commissioner's valuation has to be accepted without any modification in respect of the various trees mentioned in Ext. D1 report, as having been planted or grown after the date of the earlier report, Ext. P1. 6. The result of the above discussion is, out of the total amount of Rs. 1,417 nP. 44 found in Ext. D1 report, as having been planted or grown after the date of the earlier report, Ext. P1. 6. The result of the above discussion is, out of the total amount of Rs. 1,417 nP. 44 found in Ext. P.1 report as the compensation due to the first defendant, the value of the temporary shed and the value of the weaving shed alone have to be deducted. Deducting these two amounts of Rs. 16/- and Rs. 269 riP. 62 from the total amount of Rs. 1,417 nP. 44, the balance payable to the first defendant is seen to be Rs. 1,131 nP. 82. 7. The appeal is allowed to the extent indicated above and dismissed in other respects, and the amount payable to the first defendant as the value of the fresh improvements is fixed at Rs. 1.131 nP. 82. Parties will bear their own costs of this appeal. First defendant will be at liberty to remove the temporary shed and the weaving shed.