Kumaran v. Kulathu Iyer — 1957 DIGILAW 36 (KER)

Judgment :- 1. These two second appeals arise from two connected eviction suits before the Thodupuzha Munsiff's court. In O.S. 223 of 1120 the plaintiff, a melcharthdar from the jenmi, Manakkad Devaswom brought a suit to evict the defendants from an item of property which the Devaswom had demised on verumpattom as per Ext. A on 13.2.1084. The lease was in favour of defendant 6 and the predecessors-in-interest of defendants 1 to 5. The pattom fixed per year was 50 paras of paddy and 11/4 edangalies of coconut oil fetching a value of 3 Fs. The tenants had paid a premium of Rs. 140/-. On 11.7.1099 defendant 6 and defendant 5, the successor-in-interest of the two other lessees under Ext. A took two-third of the property comprised in Ext. A under a fresh lease arrangement evidenced by Ext. II. The annual pattom fixed thereunder was 42 paras of paddy and 11/4 edangalies of coconut oil priced at 61/4 Fs. The premium was proportionately divided and it was stipulated that Rs. 93 and 91/2 Chs. would be the premium for the property comprised in Ext. II. The suit O.S. 223 of 1120 was to evict the tenants from the entire property and the plaint alleged that in respect of the one third not comprised in Ext. II the tenants had agreed to pay pattom at the revised rates fixed in Ext. II and that that they were paying accordingly till 1119. The plaintiff obtained melcharth for the whole property as per Ext. C dated 16.7.1120. Soon afterwards he would seem to have issued notices demanding surrender and claiming that in the event of failure to do so, he will be entitled to enhanced pattom at the rate of 150 paras and 75 paras respectively for the two-third and the one-third portions of the holding. The defendants contended inter alia that the melcharth was invalid and inoperative, that the claim for enhanced pattom was inadmissible and that they were entitled to the value of improvements. There was a further dispute between the parties as to paravasi. At an early stage of the suit the court took the view that the plaintiff was not competent to bring one suit in respect of lands held under two distinct arrangements and as per the court's direction the plaintiff confined O.S. 223 of 1120 to the one third portion not covered by Ext. II. At an early stage of the suit the court took the view that the plaintiff was not competent to bring one suit in respect of lands held under two distinct arrangements and as per the court's direction the plaintiff confined O.S. 223 of 1120 to the one third portion not covered by Ext. II. A fresh suit was brought in respect of the remaining two-third in O.S. 74 of 1122. The two suits were tried and disposed of together. Except for holding that the oral arrangement in respect of the renewed lease was not made out and that the plaintiff could therefore get the arrears claimed in O.S. 223 of 1120 only at the rate specified in Ext. A, the two suits were decreed substantially in terms of the respective plaints. 2. Defendant 5 in O.S. 223 of 1120 was defendant 1 in O.S. 74 of 1122. He preferred two separate appeals before the Parur District Court against the judgments and decrees passed by the trial court. These appeals were A.S. 366 of 1953 and A.S. 367 of 1953. Practically all the contentions raised before the trial court were repeated before the lower appellate court, but the only variation the learned Additional District Judge who disposed of the appeals made was that commutation of paddy into its money equivalent must be on the basis of the prices prevailing on the due dates and not at the rate claimed in the plaint. These second appeals are directed against those appellate judgments and decrees. As before the lower appellate court the appellant in these two cases is one and the same person. 3. The only point that survives for the second appellate court for consideration is whether the lower courts were right in allowing enhanced pattom or profits as claimed from the date of the institution of the suit in 1120 or only at the rates specified in the lease deeds. Prima facie the transactions are hit by the Holdings (Stay of Execution Proceedings) Act, 1950 that have been kept alive from time to time since 1124 and as per the decision reported in 1955 KLT 622 in respect of transactions which are affected by the enactments the claim of the landlords for enhanced pattom from the date of the termination of the tenancy cannot be entertained so long as the ban imposed on eviction remains in force. The decision referred to is a Division Bench ruling which another Division Bench followed in the case reported in 1955 KLT Short Notes P. 23. Mr. M. Madhavan Nair learned counsel for the plaintiff respondent in these second appeals sought to counter the position emerging out of these decisions by contending that once the tenancy has been determined in one of the recognised modes the Holdings (Stay of Execution Proceedings) Act can have no application. This is repeating a contention which the same counsel raised before another Division Bench (Sankaran and M.S. Menon, JJ.) in S.A. 254 of 1952 and which that Bench repelled. After referring to the definition of the term 'holding' in S.2 and to S.4 of the said act, M.S. Menon, J., who rendered the decision in that case stated: "The fact that prior to the passing of a decree a lease has been terminated either by efflux of time or by a notice to quit or by the filing of the suit itself will not take the decree out of the ambit of S.4 of Act VIII of 1950. All that is necessary under the Act, as we understand it, to attract that section, is that the decree must be one directing the recovery of the possession of immovable property which was transferred by the lessor to his lessee under a single transaction covering the whole of the property involved in the suit". We entirely agree with the view set out above and do not feel that we should seek to add anything to it to negative the contention. 4. At all the material periods, that is, when the trial court passed its decrees (7.7.1953), when the appellate court gave its decisions (10.11.1954) and even today, the ban against eviction continues. The Act now in force is President's Act VI of 1956 and that is to remain in force till 24th September 1957. 5. For reasons stated in the decision in 1955 KLT 622 the claim for enhanced pattom or profits as the case may be, is inadmissible. The decrees appealed against will have therefore to be modified in that respect. The Act now in force is President's Act VI of 1956 and that is to remain in force till 24th September 1957. 5. For reasons stated in the decision in 1955 KLT 622 the claim for enhanced pattom or profits as the case may be, is inadmissible. The decrees appealed against will have therefore to be modified in that respect. While affirming the decisions of the lower appellate court in other respects, we hold that in both the cases the pattom realisable from the date of the institution of the suit in O.S. 223 of 1120 will only be at the rate at which arrears have been allowed and not at the enhanced rates allowed by the courts below. If and when the ban against eviction is lifted and the defendants continue to remain in possession, it is up to the plaintiff, if so advised, to seek his remedies for any enhanced profits in appropriate proceedings. In both the suits parties shall receive and pay proportionate costs throughout. The respondent had filed memorandum of objection in S.A. 406 of 1955 stating that the decree drawn up by the courts below was not in conformity with the judgment. In drawing up the decrees of this court the mistake pointed out will be rectified. In the suit giving rise to S.A. 406 the date of the institution of the suit should be reckoned to be the same as the date of the institution of O.S. 223 of 1120. Indeed the decretal portion of this judgment has clarified the position. Subject to the modifications indicated above, the decrees appealed against are affirmed and the second appeals will stand disposed of accordingly.