Pathakutty Amma v. Chathukutty — 1959 DIGILAW 235 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. This Second Appeal was originally filed as C. R. P. 331/59 and the Petitioners in the said C. R. P., had filed an application C. M. P. 3284/59 for converting the C. R. P. into an S. A., and by my order dated 7-8-59, I allowed the C. R. P. to be converted into an S. A. 2. Respondents 2 and 3 in E. A. 42/1955 on the file of the court of the District Munsiff, Kozhikode, are the appellants in this Second Appeal. The first '. respondent in E. A. 42/1955 had obtained a decree for eviction in O. S. 830/1943 of his tenants, who were the petitioners in the said E. A. 42/55. A decree for eviction was passed on 20-1-1945 by the Trial Court. But the said decree was reversed by the appellate court. But before the reversal of the decree by the appellate court, the plaintiff in O. S. 830/1943 (the first respondent in the E. A.) obtained actual possession of the property on 19-2-1945 and he leased the properties, on 20th June 1945, to the appellants before me, who were respondents 2 and 3 in E. A. 42/1955. 3. After the reversal of the Trial Court's decree by the appellate court, the original tenants filed E. A. 42/1955 for restitution and also claimed mesne profits. The plaintiff in the suit was the first respondent, and the appellants before me, were respondents 2 and 3 in the said E. A. 42/55. Both the plaintiff and the appellants resisted the application of the original tenants for restitution. In particular, the appellants claimed protection under S.43 of the Malabar Tenancy Act. According to them, no restitution can be granted when rights of third parties have intervened; and the plaintiff, whose rights were declared at least by the first court's decree, was competent to lease the properties in favour of the appellants. In consequence, they pleaded that they are entitled to fixity of tenure as tenants and as such, they cannot be evicted by way of restitution. They also pleaded that they are not liable for mesne profits and they further pleaded that in case of eviction, they are entitled to be paid their compensation for the value of improvements effected by them during the period 20-6-1945 to 11-11-54. 4. They also pleaded that they are not liable for mesne profits and they further pleaded that in case of eviction, they are entitled to be paid their compensation for the value of improvements effected by them during the period 20-6-1945 to 11-11-54. 4. Both the learned District Munsiff and the learned District Judge have rejected the appellants' contention that S.144 of the C. P. C. has no application. Both the courts have held that, apart from S.144 of the C. P. C., S.52 of the Transfer of Property Act also applies and as such, the rights created in favour of the appellants will be only subject to the rights of the original tenants as finally declared by the appellate court. But both the courts held that the appellants are entitled to the value of improvements, which, after enquiry, was fixed in the sum of Rs. 491/-. 5. Regarding the claim for mesne profits, both the courts again have held the plaintiff to be liable for mesne profits from the date of his taking possession namely, 19-2-1945 till he leased the properties to the appellants namely, 20-6-45. From 20-6-45 to 11-11-54 the appellants were made liable for mesne profits. The rate of mesne profits was fixed in the sum of Rs. 126/-per annum. 6. In this appeal, Mr. V. P. Gopalan Nambiar has contended that the appellants will be entitled to protection by virtue of the provisions contained in S.43 of the Malabar Tenancy Act. The learned counsel also contended that, in any event, the appellants who have paid rent to the original plaintiff during the period 20-6-45 to 11-11-54, should not have been made liable for payment of mesne profits. This really amounts to a double payment namely, of rent to the landlord-plaintiff and also of a further sum as mesne profits to the original tenants. Alternatively, Mr. Gopalan Nambiar also contended that the liability for mesne profits will arise, if at all, only on deposit of the amount of compensation decreed in favour of the appellants. 7. If S.144 C. P. C., and S.52 of the Transfer of Property Act apply, Mr. Gopalan Nambiar was not prepared to go to the extent of contending that the view taken by both the subordinate courts on those sections, is in any way wrong in law. 7. If S.144 C. P. C., and S.52 of the Transfer of Property Act apply, Mr. Gopalan Nambiar was not prepared to go to the extent of contending that the view taken by both the subordinate courts on those sections, is in any way wrong in law. Therefore, it is not necessary for me to consider the views expressed by the two courts on these two sections. 8. But Mr. Gopalan Nambiar contended that his clients are protected by S.43 of the Malabar Tenancy Act which begins by saying: "Notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force or in any contract". According to the learned counsel, whatever may be the provisions contained in the Transfer of Property Act or in any other law which will take in also the C. P. C., his clients will be entitled to continue on the holding in which they were put in possession by the plaintiff-landlord. 9. It is not possible for me to accept this interpretation sought to be placed on S.43 of the Malabar Tenancy Act. I must consider the expressions relied upon by Mr. Gopalan Nambiar in S.43 of the Malabar Tenancy Act in the light of the object of the enactment itself. The object of the enactment is to give protection by way of fixity of tenure to a cultivating tenant, who was originally on the land. Even otherwise, the section only contemplated the extinguishment of the rights of the landlord or any superior landlord by eviction or by redemption of a mortgage, or otherwise, and it is only in such cases where the landlord himself loses his right in the land that the section comes into play and states that the cultivating tenant shall be entitled to continue on the holding notwithstanding anything contained in the Transfer of Property Act or in any other law for the time being in force or in any contract. I do not think by using these expressions in S.43 of the Malabar Tenancy Act, the section intended to exclude the provisions of either S.52 of the Transfer of Property Act or S.144 of C. P. C., when it is the original cultivating tenant who is seeking relief. 10. I do not think by using these expressions in S.43 of the Malabar Tenancy Act, the section intended to exclude the provisions of either S.52 of the Transfer of Property Act or S.144 of C. P. C., when it is the original cultivating tenant who is seeking relief. 10. That the object of the enactment is to preserve the rights of the original tenant is also clear from the provisions of S.24 and 26 of the Malabar Tenancy Act, where right is given to a tenant to sue for restoration of possession of the land in certain cases. Therefore, in this view, it follows that both the courts were right in ordering restitution. 11. Regarding the contention of Mr. Gopalan Nambiar about the nonliability of his clients for mesne profits, I think there is much force. Mr. Mohamed Naha, learned counsel for the original tenants, who were the petitioners in E. A. 42/55, contended that his clients are entitled to claim mesne profits, because the appellants were in possession of the properties and in enjoyment thereof. I am not impressed with this argument of Mr. Mohamed Naha. During the period 20-6-45 to 11-11-54, they must have been paying rent to their landlord namely, the plaintiff. Both the courts have held the original plaintiff liable for mesne profits for the period from 19-2-45 to 20-6-45 and the appellants have been held liable for mesne profits only from 20-6-45 to 11-11-54. If the original tenants namely, the petitioners in E. A. 42/55, were aggrieved by this separation of liability, they should have challenged the original order in the E. A. by way of an appeal. They did not do it. Therefore the only question is whether the order awarding mesne profits as against the appellants for the period 20-6 -45 to 11-11-54 can be allowed to stand. 12. In my opinion, the appellants must have paid rent during this period to the original plaintiff, who certainly had a right to put them in possession when he got a decree in his favour in the Trial Court and therefore, the appellants should not be again made to pay mesne profits to the original tenants for the same period. Therefore, it follows that the order of both the courts directing the appellants to pay mesne profits for the period from 20-6-45 to 11-11-54 must stand vacated. Therefore, it follows that the order of both the courts directing the appellants to pay mesne profits for the period from 20-6-45 to 11-11-54 must stand vacated. As there was a decree against the appellants for mesne profits, no question of deposit of the value of improvements arose, because the appellants were allowed to set off the value due to them by way of improvements. Now that the decree for mesne profits against the appellants is set aside, it follows that the petitioners in E. A. 42/55 must deposit the amount of compensation due to the appellants within six weeks from today. 13. I may also add that a certificate under S.5 of the Indian Soldiers (Litigation) Act-Central Act IV of 1925-issued by the District Collector, Kozhikode in respect of the second appellant Sri Ravunni Nair, was placed before me. In the said certificate, it is mentioned that Sri Ravunni Nair is unable to appear and that a postponement of the hearing of this appeal in respect of the said soldier is necessary till 31-12-1959. 14. But the said Sri Ravunni Nair is represented by a counsel and further, his interests are identical with those of the first appellant in this case. Therefore, by virtue of the provisions of S.6 of the Indian Soldiers (Litigation) Act- Central Act IV of 1925-I declined to stay the proceedings and heard the appeal. In the result, the orders of both the courts directing restitution in favour of the petitioners in E. A. 42/1955 is confirmed; but those orders, in so far as they make the appellants liable for mesne profits, are set aside. As both parties succeed and fail in part, there will be no order as to costs.