Vicar Paul Kakasseri v. Damodaran Adithiriapad — 1955 DIGILAW 160 (KER)

Judgment :- 1. Defendants in O.S.No.734 of 1123 of the Trichur Munsiff's Court are the appellants in S.A. No.51 of 1954. They are defendants in O.S. No. 736 of 1123 also and are the appellants in S.A. No. 52 of 1954. They represent the Ollur Church. The plaintiff in both the suits is the same. He is the manager of Kalleri Thamarapilli Mana to which the properties in the two suits belong. The properties were demised on kanam to the defendant Church. The last renewal of the kanom was on 3.6.1098. Ext. I in O.S. No. 734 of 1123 is the renewal deed relating to the property which is the subject matter of that suit. Ext. I in O.S. No. 736 of 1123 is the renewal deed relating to the property involved in that suit. Plaintiff filed the two suits for recovery of arrears of michavarom, renewal fees and puravakas due under the kanom deeds and for renewal of the kanom with enhanced michavaram. The defendants deposited in court the arrears of michavaram, renewal fees and puravakas but contended that the plaintiff was not entitled to get enhanced michavarom. 2. The michavarom payable in respect of the property involved in O.S. No. 734 of 1123 under the renewed deed of 1098 was Rs. 15-5-5 besides 4 as. 7 ps. payable as parambupanam. The michavarom payable for the property which is the subject matter of O.S. No. 736 of 1123 was Rs. 24-4-0 besides parambupanam of 4 as. 7 ps. There was also provision in the renewed kanom deeds for payment of other puravakas. In O.S. No. 734 of 1123 the plaintiff claimed enhancement of michavaram to Rs. 70/- while in the other suit the plaintiff wanted michavarom to be enhanced to Rs. 100/-. The trial court enhanced michavaram to Rs. 50-14-8 for the property involved in O.S. No. 734 of 1123 and to Rs. 100/- for the other property. The appeals filed by the defendants from these decrees were dismissed by the District Court. Hence these second appeals. 3. The trial court re-settled michavaram for the properties on the basis of their present yield. It was contended for the defendants that the jenmi was not entitled to have michavaram re-settled on the basis of the yield from the kanom property at the time of the renewal of the kanom deed. Hence these second appeals. 3. The trial court re-settled michavaram for the properties on the basis of their present yield. It was contended for the defendants that the jenmi was not entitled to have michavaram re-settled on the basis of the yield from the kanom property at the time of the renewal of the kanom deed. S.34 of the Cochin Tenancy Act (Act XV of 1113) contains the provision relating to enhancement or reduction of pattom, as the case may be, at the time of the renewal of the kanom deed. It reads. "34. (a) The pattom may be proportionately enhanced if during the currency of the kanom or of the last renewal, as the case may be, - (1) the area of the holding actually under cultivation has increased. (2) the productive power of the land comprised in the holding has increased on account of specific causes not merely temporary of casual (3) where the land demised is paramba, the number of trees in the holding on which pattom is assessable has increased; or (4) the land being paramba, the average local price of the produce of the trees on which pattom is assessable has risen. Where reclamation or other permanent improvement was effected at the expense of the kanom tenant and has contributed to the increase in the area under cultivation, the productive power of the land or the number of assessable trees taken account of under this section, the cost of such improvement shall be determined in accordance with Chapter II of this Act and the enhancement of pattom shall be reduced by the amount of interest on such cost calculated at the same rate as on the kanom amount. "(b) The pattom may be proportionately reduced, if during the currency of the kanom or of the last renewal as the case may be, (1) the area of the holding has been diminished by causes beyond the control of the tenant, such as action of the sea, river or lake, (2) the soil of the holding has permanently deteriorated and such deterioration was not due to improper use or neglect by the tenant; (3) where the land is paramba, the number of trees in the holding on which pattom is assessable has been diminished by causes beyond the control of the tenant; or (4) the land being paramba, the average local price of the produce of the trees on which pattom is assessable has fallen. Explanation 1. Where the area comprised in the kanom is described in the kanom deed in terms of para and there is no other indication calculated to make the extent more definite, a para of land shall be taken, for all purposes of this section to secure 12 cents. Explanation 2. The trees on which pattom is assessable are the following:- Cocoanut trees, arecanut trees and jack trees." 4. According to the defendant, what is provided in the section is enhancement of pattam in proportion to the increases in the area of the holding under actual cultivation, or in the productive power of the land, or in the number of assessable trees, or in proportion to the rise in the average local price of the produce of the trees on which pattam is assessable, and reduction of pattam in proportion to the reduction of the area of the holding under actual cultivation or the permanent deterioration of the soil or the reduction in the number of assessable trees or in proportion to the fall in the average local price of the produce of the trees on which pattam is assessable. Although the learned Munsiff has stated in the judgment that this was the contention of the defendants he did not discuss the question. The learned Munsiff assessed pattam for the properties on the basis of their present yield and re-settled michavaram on that basis. The learned District judge also did not discuss the question. Although the learned Munsiff has stated in the judgment that this was the contention of the defendants he did not discuss the question. The learned Munsiff assessed pattam for the properties on the basis of their present yield and re-settled michavaram on that basis. The learned District judge also did not discuss the question. According to the learned judge the two questions that arose for decision in the suits were:- (1) Whether the number of trees that existed on the date of the suits and the price of cocoanuts prevailing on that date should be compared with those in the year 1110 or with those in the year 1098; and (2) whether interest on the value of assessable trees planted by the tenant after the date of the last renewal should be deducted from the enhanced pattam. The learned judge held that the comparison should be with the number of trees that existed in 1098 and the price that prevailed then. The learned judge accepted the assessment of the pattam made by the trial court on the basis of the yield from the properties and the settlement of michavaram on that basis. 5. The second contention raised by the defendants was that interest on the cost of planting and rearing the new trees on which pattam was assessable should be reduced from the kanapattam as provided in S.34(a). This contention also was repelled by both the courts below. 6. The two questions that arise for consideration in these second appeals are:- (1) whether the plaintiff is entitled to have pattam re-assessed on the basis of the present yield of the properties or only to claim enhancement of pattom in proportion to the increase in the area of the holding, in the productive power of the land, or in the number of assessable trees or to the rise in the average local price of cocoanuts; and (2) whether the defendants are entitled to have the interest on the cost of planting and rearing the new trees on which pattam could be assessed deducted from the enhanced pattam. 7. As for the first question, there is no provision in Act XV of 1113 (Cochin) for re-assessment of pattam on the basis of the yield from the property at the time of the renewal of the kanom deed and for re-settlement of michavaram on the basis of such pattam. 7. As for the first question, there is no provision in Act XV of 1113 (Cochin) for re-assessment of pattam on the basis of the yield from the property at the time of the renewal of the kanom deed and for re-settlement of michavaram on the basis of such pattam. S.33 and 34 are the only sections in the Act relating to enhancement and reduction of michavaram at the time of the renewal of the kanom. S.33 provides that the michavaram payable by a kanam tenant may be enhanced or reduced at the time of the renewal by enhancing or reducing the pattam as provided in S.34. S.34(a) says that pattam may be proportionately enhanced if the area of the holding has increased, the productive power of the land has increased, the number of assessable trees has increased, or if the average local price of the produce of the trees on which pattam is assessable has risen. S.34(b) provides that the pattam may be proportionately reduced if the area of the holding has been diminished, the soil of the holding has deteriorated, the number of assessable trees has been diminished or if the average local price of the produce of the trees on which pattam is assessable has fallen. The section does not provide for re-assessment of pattam on the basis of the income from the property at the time of the renewal. The section only provides for proportionate enhancement of pattam if the contingencies mentioned in Cls. (10) to (14) of sub-s. (a) have happened and for proportionate reduction of pattam if the contingencies mentioned in Cls. (1) to (4) of sub-s. (b) have happened. The section does not also prescribe the mode of re-assessment of pattam on the basis of yield. 8. It has also to be noted that the wording of S.34 of Act XV of 1113 is different from the wording of the corresponding provision in Act II of 1090 (Cochin) relating to enhancement of michavaram. S.30 of that Act reads: "The landlord of a holding shall not be entitled to claim an enhancement of the michavarom fixed under any existing kanom demise except for one or more of the following grounds." It is not stated in the section that pattom may be proportionately enhanced, which is the expression used in S.34 of Act XV of 1113. The intention of the legislature in introducing the words "pattom may be proportionately enhanced" in S.34 of Act XV of 1113 must have been to make the original agreement between the parties relating to kanapattom the basis for determining kanapattom at the time of the renewal of the kanom and to allow only proportionate enhancement if certain contingencies have happened after the date of the original agreement. If pattom is to be assessed afresh on the basis of the yield from the property at the time of the renewal the original agreement between the parties need not be taken into consideration at all. The wording of the section makes it clear that the intention of the legislature was to retain the original agreement between the parties as the basis and to allow only proportionate enhancement of the pattom if the contingencies mentioned in the section have happened. If this is the correct interpretation of the section the courts below have gone wrong in re-assessing pattom on the basis of the present income from the properties without reference to the original pattom agreed upon between the parties. What the court has to consider under the section is whether, after the date of the last renewal, the area of the holding under actual cultivation has increased, whether the productive power of the land has increased, whether the number of assessable trees has increased and whether the average local price of the produce of the trees on which pattom is assessable has risen. If any of these contingencies has happened the court has to enhance the pattom proportionately subject to the proviso contained in the section. 9. The next question for consideration is whether the tenant is entitled to have the interest on the cost of planting and rearing the new trees on which pattom is assessable deducted from the enhanced pattom. The trial court decided this question against the tenant on the basis of the decision of the Cochin High Court in Raman Menon v. Kunhunni Nambooripad (12 Cochin 6). The lower appellate court took the view that permanent improvement contemplated by the section is something other than trees planted by the tenant, that it should be an improvement that facilitated the planting of tress and that trees are not permanent improvements. 12 Cochin 6 was a case under Act II of 1090. The lower appellate court took the view that permanent improvement contemplated by the section is something other than trees planted by the tenant, that it should be an improvement that facilitated the planting of tress and that trees are not permanent improvements. 12 Cochin 6 was a case under Act II of 1090. The wording of the provision contained in S.30 of that Act is not exactly the same as that of the provision contained in S.34 of Act XV of 1113. Apart from this, it would appear from the judgment in that case that the learned judges proceeded on the basis that the new trees planted by the tenant were planted in the place of old trees that were in existence on the date of the kanom demise. This is what Narayana Menon, J., observed in that case: "In the first place, there is no reliable evidence, that in bringing about the increase in the number of arecanut trees any such works of permanent improvement as contemplated by that section have been effected. The plaint property appears to be an ordinary arecanut garden. In planting arecanut trees from time to time in places of those that naturally go out of existence, no such works have ordinarily to be effected and there is no evidence of an extraordinary condition relating to the garden in question or of any special works done by the tenant. Even if there has been any such work, that fact again is not calculated to affect the amount fixed. The most favourable supposition that can be made on behalf of the tenant is that all the existing trees are his improvements. Even then, the jenmi's share in such improvements would, according to the provisions of the Regulation, be one-fourth and there will be nothing improper in fixing the kanapattom to be at least the income of such share of the jenmi. Such fixing would provide for the interest on the cost of improvements, if any, effected." In this case, the new trees on which pattom is assessable were not trees planted in the place of old trees. All the trees included in the kanom deed of 1098 are still existing. New trees were planted in areas where there were no trees. Such fixing would provide for the interest on the cost of improvements, if any, effected." In this case, the new trees on which pattom is assessable were not trees planted in the place of old trees. All the trees included in the kanom deed of 1098 are still existing. New trees were planted in areas where there were no trees. The question whether the tenant is entitled to have the cost of planting and rearing new trees in areas not originally planted taken into account when determining kanapattom at the time of the renewal of the kanom deed was not considered by the learned judges in 12 Cochin 6. 10. In Ramaswamy Koundan v. Atchuthan Unni Valia Mannadiar (7 Cochin Law Journal Reports 301) the question was raised as to whether the tenant was entitled to have the cost of planting cocoanut trees taken into account in calculating enhanced pattom. But in that case the court did not take into account the yield from the new cocoanut plantation in calculating enhanced pattom. It was, therefore, held that the cost of planting the cocoanut trees also should not be taken into account. It would appear from the judgment that if the yield from the new cocoanut trees was to be taken into account in calculating kanapattom the cost of planting such trees should also be taken into account. This is what Thomas Manjuran, J., observed in the case. "With regard to the cocoanut plantation, it is clear from the judgment of the lower appellate court that that court did not take into consideration the yield from the cocoanut plantation in calculating the enhanced pattom. Hence it was only proper to leave out of consideration the value of the plantation in estimating the tenants' improvements value. The appellants, hence are not entitled to have that amount taken into consideration." This also was a case under Act II of 1090. It is true that the learned judge did not decide the question whether under S.30 of that Act the tenant was entitled to have the cost of planting new trees taken into account in calculating enhanced pattom. But the judgment lends some support to the contention that if the yield from the new trees is taken into account in determining the pattom the cost of the tenant in planting and rearing those trees should also be taken into account. 11. But the judgment lends some support to the contention that if the yield from the new trees is taken into account in determining the pattom the cost of the tenant in planting and rearing those trees should also be taken into account. 11. With regard to the observation of the learned District Judge that cocoanut trees are not permanent improvements we are not inclined to agree with that view. We think that the expression'permanent improvement' used in the section only means that the improvements should not be of a temporary character. It was argued for the respondent that the Act makes a distinction between'improvements' and 'permanent improvements' that in S.3 of the Act which defines 'improvement' the expression'permanent improvement' is used only in Cl. (f), that therefore, only the 'improvements' mentioned in that clause, viz., reclamation, clearance and enclosure for agricultural purposes can be regarded as 'permanent improvements' and that all other improvements mentioned in the section are'improvements' which are not permanent. We are unable to accept this argument. There are various kinds of improvements mentioned in the section which are of a permanent character. For example, Cl. (d) relates to conversion of single crop into double crop land. It cannot be said that this is not a permanent improvement. We are clearly of opinion that the planting and rearing of cocoanut trees is a work of permanent improvement within the meaning of S.34. 12. The argument that, under the section, the improvement should be one that has contributed to the increase in the number of assessable trees and that, therefore, the trees themselves cannot be the improvement may, at first sight, appear to be sound. The improvement should certainly be something other than the assessable trees, but the cost of improvement claimed by the tenant is the cost of planting and rearing trees which become assessable trees. It is not a case of the tenant planting and rearing assessable trees. The plants become assessable trees as a result of labour and money spent by the tenant. The question for consideration is whether the planting and rearing of cocoanut trees is a permanent improvement coming within the purview of the clause. The provision contained in the clause is of the nature of a proviso to Cls. (1), (2) & (3) of the section. The question for consideration is whether the planting and rearing of cocoanut trees is a permanent improvement coming within the purview of the clause. The provision contained in the clause is of the nature of a proviso to Cls. (1), (2) & (3) of the section. Under those clauses the jenmi is entitled to enhancement of pattom if the area of the holding under actual cultivation has increased or the productive power of the land has increased or if the number of trees in the holding on which pattom is assessable has increased. The purport of the proviso seems to be that in such cases credit should be given for the cost of improvements effected by the tenant. It is not disputed that if the area of the holding under actual cultivation has increased owing to reclamation, clearance or other permanent improvement effected by the tenant he is entitled to have the cost of such improvement taken into account. It is conceded that the same will be the case if the productive power of the land has increased as a result of permanent improvements effected by the tenant. If that is the case, we find no justification for holding that the tenant will not be entitled to have the cost of planting and rearing new trees taken into account when pattom is sought to be enhanced on the basis of the increase in the number of assessable trees. It was argued for the respondent that the tenant is entitled only to three-fourth the value of the trees planted by him, that one-fourth should go to the jenmi and that in assessing kanapattom only one-fourth the verumpattom will be taken into account. It was, therefore, argued that there is nothing wrong in not taking into account the cost of planting and rearing the trees in determining the kanapattom for the property. But under the section, it is not the value of the improvement effected by the tenant that has to be taken into account but only the cost of such improvement which must usually be much less than the value of the improvement. Moreover, this argument must apply also to cases coming under Cls. (1) and (2) of the Section viz., increase in the area of the holding under actual cultivation and increase in the productive power of the land. Moreover, this argument must apply also to cases coming under Cls. (1) and (2) of the Section viz., increase in the area of the holding under actual cultivation and increase in the productive power of the land. Increase in the area of the holding under actual cultivation and in the productive power of the land implies increase in the yield of the property. In those cases also the jenmi will get the benefit of a portion of the enhanced yield. If in those cases the tenant is entitled to have the cost of improvement taken into account, there is no reason why it should not be taken into account in the case of increase in the yield of the property by reason of the increase in the number of assessable trees. Further if the cost of reclaiming and clearing a portion of the holding and bringing it under actual cultivation can be taken into account when calculating enhanced pattom, we find no reason why the cost of planting and rearing trees in that area should not also be taken into account. Even if the case does not come under Cl. (3) relating to assessable trees it may come under Cl. (1) relating to area under actual cultivation. Reference may be made in this connection to the observation of Narayana Menon, J., in Parameswaran Nambooripad v. Elachar (9 Cochin 175 (252)) : "It is a well known economic principle that improvement should not be taxed as far as possible and to claim enhanced michavaram as a result of improvement is virtually a taxation upon improvement. It is also equally sound and fair principle that taxation should as far as possible be on the basis of 'unearned increment' and to claim enhancement of michavaram as a result of improvement is virtually a taxation on increment that is not unearned, but earned by spending capital and labour". We think that the reasonable interpretation of the provision is that the tenant is entitled to have the cost of planting and rearing new trees taken into account when enhancing pattom under the section. 13. The view taken by the courts below on the two questions that arise for decision in these suits, is, in our opinion, not correct. The question of enhancement of michavarom will have to be considered afresh. 13. The view taken by the courts below on the two questions that arise for decision in these suits, is, in our opinion, not correct. The question of enhancement of michavarom will have to be considered afresh. The jenmi is not entitled to have pattom re-assessed on the basis of the present yield from the properties and the tenant is entitled to have the interest on the cost of planting and rearing new trees on which pattom is assessable deducted from the enhanced pattom. The cost of improvement will have to be determined in accordance with the provisions of Chapter II of the Act. 14. We, therefore, set aside the judgments and decrees of the courts below and remand the two cases to the trial court for fresh disposal according to law and in the light of the observations made above. 15. The State Legislature has already passed a bill relating to kanom tenancy in the Cochin area. If this bill becomes law the court will consider the effect of that law so far as these suits are concerned. 16. The second appeals are allowed in the manner stated above. Costs incurred by the parties till now will be costs in the cause and will abide the final result of the suits. Court fees paid on the memoranda of second appeals in this Court will be refunded to the appellants.