(1.) The appellant is the 2nd defendant in a decree for redemption, which relegated assessment of compensation for improvements to execution. The decree holder, applying for execution, moved for a commission to assess improvements. Two items only in the commissioner's report form the subject matter of this appeal: the first is a drain across the mortgaged property, of which the cost is estimated by the commissioner at Rs. 500/-, but the time of opening could not be assessed by him; and the second 94 coconut palms and 10 jack trees extant at the time of the mortgage for which the commissioner assessed compensation under S.11 of the Kerala Compensation for Tenants' Improvements Act, XXIX of 1958 hereinafter 'the Act' read along with the table published by the Government under S.13(i)(b)(iii) of the Act [Vide 1961 KLT (Rules & Notifications) 138]. The Courts below concurred to negative compensation for both these items. Hence this second appeal.
(2.) The primary burden to prove existence of improvement on the property in possession of the mortgagee, for which compensation is due, to him, is on the mortgagee. Mere presence of a drain across the land, without proof that it is a work of the mortgagee beneficial to the property, will not show it to be an item of improvement. The mortgagee has given no evidence in this regard. As observed by the Privy Council in Radha Kishun v. Khurshed Hossein ( AIR 1920 PC 81 , 83), " of things that do not appear and things, that do not exist the reckoning in a Court of law is the same." Things not proved have therefore to be taken as non existent for purposes of adjudication. Further, the observation of the Courts below that the name of the property as "Ovuthalachal purayidom" 'Ovu' and 'Chal' both denote a channel in vernacular is indicative of a drainage channel in the property even before the land registration appears right. The Courts below were therefore justified in not awarding cost of the drain to the mortgagee.
(3.) As regards the coconut palms and jack trees extant on the property at the time of the mortgage: The following sections of the Act have to be read:
"2. Definitions. In this Act, unless the context otherwise requires, -
(b) '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 is left, mortgaged or occupied, but does not include such clearances, embankments, levellings, enclosures, temporary wells and water channels as are made by the tenant in the ordinary course of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry;
3. What are presumed to be improvements.- Until the contrary is shown, the following works or the products of such works shall be presumed to be improvements for the purposes of this Act:
(a) the erection of dwelling houses, buildings appurtenant thereto and farm buildings;
(b) the construction of tanks, wells, channels, dams and other works for the storage or supply of water for agricultural or domestic purposes;
(c) the preparation of land for irrigation;
(d) the conversion of one crop into two crop land;
(e) the drainage, reclamation from rivers or other waters or protection from floods or from erosion or other damage by water, of land used for agricultural purposes, or of waste land which is culturable; (sic cultivable the Kerala Gazette Extraordinary dated 24th May 1958 gives it as culturable)
(f) the reclamation, clearance, enclosure or permanent improvement of land for agricultural purposes;
(g) the renewal or reconstruction of any of the foregoing works or alterations therein or additions thereto; and
(h) the planting or protection and maintenance of fruit trees, timber trees and other useful trees and plants.
9. Other kinds of improvements.- When the improvement is not an improvement to which sub-s.(1) of S.7 or S.8 applies, the compensation to be awarded shall be the cost of the labour including supervision thereof and of the materials together with other expenditure, if any, which would at the lime of the valuation, be required to make the improvement, less a reasonable deduction on account of the deterioration, if any, which may have taken place from age or other cause.
11. Improvement consisting in protection and maintenance of trees and plants.- When the improvement consists in the protection and maintenance of timber or fruit trees or of other useful trees or plants not sown or planted, by any of the persons mentioned in S.4, or of such tress or plants spontaneously grown prior to the commencement of the tenancy, the compensation to be awarded shall be the proper cost of such protection and maintenance as provided in S.9.
13. Power to prepare tables of prices of produce, etc.- (1) For the purpose of determining the amount of compensation to be allowed under this Act, the Government may prepare tables for the whole or any part of the State showing all or any of the following matters: -
(a) the price of cocoanuts, arecanuts, pepper and paddy;
(b) the cost of -
(iii) protecting and maintaining a cocoa nut tree, an arecanut tree, a jack tree, a mango tree, such other tree as may be notified by the Government tram time to time and a pepper vine for one year when in bearing.";