Ratio(s) Decidendi-Requirements of section 63-A not satisfied.

The appellant herein was the second plaintiff in O.S.No. 525 of 1957, on the file of the Court of the District Munsif of Kulitalai and the second respondent in LA. No. 114 of 1963 therein. The suit itself was one for redemption of the mortgage instituted by the first plaintiff, who is dead, on the basis of a document dated 4th August, 1930, executed by the first plaintiff’s predecessors-in-interest in favour of the respondents’ predecessor-in-interest. That document was in the form of an absolute sale with a condition that the vendee should reconvey the property, whenever the vendor paid the consideration. In the suit for redemption that document was construed as a mortgage by conditional sale and the suit for redemption was decreed. The conclusion that the transaction constituted a mortgage by conditional sale was confirmed by the first appellate Court and by this Court in Mariyayi Ammal and 4 others v. Family Manager, Rengappa Naicker1, disposed of by Anantanarayanan, J., as he then was, on 25th April, 1962. In the second appeal, a further question arose as to the right to recover the value of the improvement said to have been effected in the form of digging a well in the property by the predecessors-in-interest of the respondents herein. With regard to the value of the said improvement as well the liability to pay the same by the present appellant, the matter was remanded. This is what this Court stated on that occasion:

“The first Court will now specifically consider whether there is a well in the said items, which was not in existence at the time of the original transaction, and whether defendants are not entitled to the value of the well on the ordinary presumption that, since it is an artificial construction which came into existence during the period of the mortgage it must have been constructed only by them. The question whether, under law, the defendants are entitled to the entire value of that improvement, will, of course, also have to be gone into by the trial Court and embodied in the final decree.”

It is thereafter, I.A. No. 114 of 1963 was filed by the respondents herein under Order 34, rule 8, Code of Civil Procedure, to direct the appellant herein to pay the respondents a sum of Rs. 2,000 by way of compensation for improvement said to have been effected in respect of item 1 of the suit property. In this interlocutory application, two questions arose. One was the fact and value of the improvement and the second was the liability of the appellant to pay the said value. As far as the fact and the value of the improvement was concerned, the learned District Munsif came to the conclusion that the well was dug by the mortgagee and its value was Rs. 1,000. With regard to the liability of the appellant to pay the said value, the learned District Munsif negatived the same. Before the learned District Munsif and in the affidavit filed in support of the said interlocutory application, the claim was made on the basis of section 63-A of the Transfer of Property Act, hereinafter called the Act, and the learned District Munsif pointed out that no case had been put forward, nor had it been proved so as to invoke section 63-A (2) of the Act. With reference to section 63-A (1) of the Act, the learned District Munsif pointed out that there was no contract between the parties to pay the value of the improvement by the mortgagor and therefore the respondents herein were not entitled to the same. An argument was advanced that the respondents herein would be entitled to the said value under section 51 of the Act and that claim also was negatived by the learned District Munsif. In this view, the said Interlocutory application was dismissed by the learned District Munsif on 17th December, 1964. Against the said dismissal, the respondents herein preferred an appeal to the learned District Judge of Tiruchirappali, who, on 7th December, 1965, allowed the appeal. The learned District Judge confirmed the conclusion of the learned