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1954 DIGILAW 153 (KER)

Kunjuvareed v. Radhalekshmi Naithiyamma

1954-09-07

M.S.MENON, SANKARAN, SUBRAMONIA.IYER

body1954
Judgment :- 1. This is an appeal by the 1st defendant in O.S. No. 24 of 1121 of the District Court of Anjikaimal and the main question that arises for our consideration is whether "waste" to form a ground for eviction under S.8 of the Cochin Verumpattomdars Act, VIII of 1118, should be committed subsequent to that enactment or whether waste committed prior to that enactment will also suffice. 2. Waste may be either voluntary or permissive. It is voluntary, for example, when a house is pulled down and it is permissive, when the tenant just suffers it to collapse for want of necessary repairs. The appellant has a contention that S.8(b) contemplates only 'voluntary waste', that is, waste which is actual or commissive and not permissive waste, which is a matter of negligence and omission only. It is admitted by the learned counsel for the respondent that there is no positive evidence of waste either voluntary or permissive after the date of the enactment and so it will be unnecessary for us to consider this point, if our conclusion is that waste to found eviction under the Cochin Verumpattomdars Act, VIII of 1118, should be waste subsequent to the enactment and not anterior to its coming into force. 3. The Cochin Verumpattomdars Act, VIII of 1118, came into force on the 3rd March, 1943, corresponding to the 22nd Kumbhom 1118, and by S.4 of that enactment fixity of tenure was given to the verumpattomdar in the following terms: "Notwithstanding any law, custom or contract to the contrary, every verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in S.8 of this Act". The relevant portion of S.8 reads as follows: "(1) No suit for eviction of a verumpattomdar from his holding or any portion thereof shall lie except on the following grounds - (b) that he has intentionally and wilfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding". 4. As we read the Act, S.4 confers fixity of tenure on verumpattomdars irrespective of antecedent circumstances and S. 8 enumerates the grounds on which the fixity thus granted is liable to be defeated. 4. As we read the Act, S.4 confers fixity of tenure on verumpattomdars irrespective of antecedent circumstances and S. 8 enumerates the grounds on which the fixity thus granted is liable to be defeated. From this alone should follow the conclusion that any ground for eviction enumerated in S. 8 must be a ground that arises subsequent to the granting of fixity under S. 4 and that it is not sufficient if it existed prior to the commencement of the Act. The true effect of S.4 must be to wipe out all antecedent causes of action, grant fixity of tenure irrespective of the existence of such causes of action at the time the Act came into force and to provide that after the 3rd March 1943, no eviction should be possible except on the grounds enumerated in S. 8 of the Act. In XXXVIII Cochin 511 (FB) and in the revised judgment in the same case, XXXIX Cochin 693 (FB) and 1953 K.L.T. 667 this question has been fully considered. The reasoning in all the three judgments can be summed up as has been made in the last mentioned case: "Waste which should be a ground for forfeiture of permanency conferred upon a verumpattomdar under the Act must be one committed after the date of the Act because it was the Act which conferred permanency and any circumstance that will take away that permanency must be one that occurred subsequent to the conferment of that permanency". The contention of the appellant on the main question should hence prevail and the decree for eviction granted by the lower court has to be set aside. 5. A second question that arises for consideration is about the existence and validity of the oral agreement alleged by the plaintiff in paragraph 4 of the plaint as having taken place on 22.2.1095 by which the annual pattom of Rs. 276/- payable for the holding was agreed to be paid partly in cash and partly in kind, Rs. 138/- by the 30th of Medom and 220 paras and 8 edangalies of paddy by the 30th Vrischikam every year. The lower court dealt with the question as to whether the agreement is true as follows in paragraph 8 of the judgment: "The first question for consideration is whether the said agreement is true. In this connection the conduct of the 1st defendant may be taken into account. The lower court dealt with the question as to whether the agreement is true as follows in paragraph 8 of the judgment: "The first question for consideration is whether the said agreement is true. In this connection the conduct of the 1st defendant may be taken into account. In para 3 of the written statement the 1st defendant would freely admit that he has paid paddy as pattom to the Kovilagom. If there was no agreement as the one set up by the plaintiff, it is not likely that the lessee would pay it in paddy. It is not an isolated payment that is admitted by the 1st defendant. He has paid it in paddy many a time. This admission of the 1st defendant and the conduct evidenced by such payment is a very strong circumstance in support of the plaintiff's case. Another circumstance in support of the plaintiff's case on this point is the fact that this is not the first time that the plaintiff has set up this case. The present case is set up as early as in the year 1114. Ext. I is the copy of the decree in O.S. 781/14 of the local Munsiff's Court. A perusal of that document would show that the present case is set up in identical terms in the plaint in that case. The year, the month and the date of the agreement is stated in the plaint and the arrears of pattom was claimed in that suit on the basis of that agreement. The present 1st defendant was a party to that suit. In fact he contested that case but he would admit that his contention related only to the scaling down of the amount under Act XVIII of 1114. He did not question the correctness of the amount claimed in that plaint. This conduct is also a very strong piece of evidence in support of the plaintiff's case. The plaintiff took out execution for the amount covered by the decree and proclaimed the properties for sale. At that stage the 1st defendant deposited the amount and paid off that debt. The circumstantial evidence alone is sufficient to prove the plaintiff's case regarding the new agreement. But there is direct evidence also to support the circumstantial evidence. The Thandapper account kept by plaintiff for the years 1119 and 1120 are produced in this case as Exts. At that stage the 1st defendant deposited the amount and paid off that debt. The circumstantial evidence alone is sufficient to prove the plaintiff's case regarding the new agreement. But there is direct evidence also to support the circumstantial evidence. The Thandapper account kept by plaintiff for the years 1119 and 1120 are produced in this case as Exts. M and O. They show clearly that the pattom per year is Rs. 138 and 220 paras and 3 edangalies of paddy. These account books are kept in the course of business and they are proved by the Manager of the plaintiff who is examined as Pw. 7 in this case. Ext. Q is the thandapper for the year 1118 which supports Exts. M and O. Other vouchers are also produced in this case to prove this point. I have no hesitation in believing Pw. 7 when he swears to the plaint case on this point. I disbelieve the 1st defendant. I find the agreement set up in the plaint true". and we see no reason to differ from the finding especially in view of the appellant's conduct in O.S. 781 of 1114 of the Court of the District Munsiff, Ernakulam. 6. The question as to whether such an agreement will be hit by S. 92 of the Evidence Act was dealt with by the learned District Judge in paragraph 9 of his judgment as follows: "I will next consider the latter part of issue No. 7. That relates to the admissibility of this oral agreement in derogation of the written contract. The 1st defendant's learned advocate vehemently contended that this subsequent oral agreement cannot be allowed to be proved in this case as it offends against the provisions of S. 92 of the Evidence Act. It is true that the terms of plaint lease have been reduced to writing. They are evidenced by Ext. D the lease deed. In the present case the main terms of the contract are not contradicted or varied. A change is made on the mode of discharge of the obligation to suit the convenience of the parties. Instead of the whole pattom being paid in money as stipulated in the original document, a portion of it is commuted into paddy at the then prevailing rate and made payable by the lessee. A change is made on the mode of discharge of the obligation to suit the convenience of the parties. Instead of the whole pattom being paid in money as stipulated in the original document, a portion of it is commuted into paddy at the then prevailing rate and made payable by the lessee. I do not think the agreement would offend against the provisions of the S. 92 of the Evidence Act. I find this part of issue No. 7 also against the 1st defendant and for the plaintiff". We are in agreement with the conclusion of the learned District Judge on this point also. It has to be noted that the pattomchit of 2.8.1082, Ext. D, was for a specified period of years and as that period had expired before the date of the oral agreement S. 92 of the Evidence Act can have no application at all (see 65 IC 589). 7. There was some controversy regarding the amount due to the respondent but in the light of the explanations and concessions made at the bar we see no reason for not accepting the statement filed on behalf of the appellant. The amount shown therein as due on 6.9.1954 is Rs. 2,310-7-3 and the appellant agrees that a decree for that amount with interest at 6 per cent per annum from the date till date of payment or realisation may be passed in favour of the respondent. A decree for the said amount and interest will follow. 8. No other question arises for consideration and the appeal will stand disposed of as above. There will be no order for costs here and in the court below.