1. We think that this appeal must be allowed, since the learned Subordinate Judge made two mistakes in his disposal.
2. Firstly, he held that the appellant’s cause of action was the same in this and the previous suit. In fact in the previous suit it was the 1st defendant’s holding prior to it. That holding was terminated by the decree in it, and the holding after decree constituted a fresh ijause of action.
3. Next, though compensation for improvements was awarded by the previous decree, the learned Subordinate Judge did not keep in mind the provisions of Section 5 of Act I of 1900, and the fact that a tenant continuing in possession pending receipt of compensation holds subject to the terms of his previous lease, that is, holds as a tenant. Kummatha Vittil Kunhi Kuthalai Hagi v. Antoni Goveas 19 Ind. Cas. 563 : (1913) M.W.N. 339 : 13 M.L.T. 350 : 24 M.L.J. 472. It follows that the 1st defendant must have held as a tenant after the decree against him, and that the learned Subordinate Judge’s conclusion to the contrary, based only on the absence of payments of rent is unsustainable.
4. In reply our attention has been invited to the form of the previous decree, Exhibit I, and the fact that it requires no “payment by the plaintiff but credits the compensation due from him against the arrears of rent payable by the 1st defendant. But the result of this is only that the payment must be treated as having been made by credit to the defendant on the date of the decree. The 1st defendant has still to show how further compensation would not be due to him for further improvements, which might have been made, when delivery might be applied for: and in fact the District Munsif’s present valuation of improvements, to which the 1st defendant has taken no objection, shows that some have been made since the previous decree was passed. Again, till they are paid for, he will retain his status as a tenant and there will be no ground for a decision that he has held adversely or that the suit is barred under Section 11 of the Code of Civil Procedure.
5. The second appeal is allowed, the decree of the lower Appellate Court being set aside and that of the District Munsif being restored with costs throughout.
6. Time for deposit of value of improvements will be six months.