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1961 DIGILAW 236 (KER)

Parukutty Amma v. Naha Haji

1961-07-25

M.MADHAVAN NAIR

body1961
Judgment :- 1. These appeals have arisen from a suit for recovery of property with rent, past and future, on the basis of a 'Kana kychit' executed by the defendant in favour of the plaintiff's mother There was a renewal of the kanom, but the courts below have concurrently held the same to be void. The learned Munsiff, disallowing the prayer for recovery of possession, decreed the claim for arrears of rent for six years preceding the date of the suit; and the learned Subordinate Judge confirmed the same. Hence these Second Appeals. 2. S.A. No. 908 of 1956 (M) is by the 1st defendant, against the finding that the renewal of the kanom executed by the plaintiff's brother was invalid. The concurrent decision of the courts below that the renewal was neither necessary nor beneficial to the plaintiff's tarwad, is final on the question and cannot be canvassed in Second Appeal. It is common-place that properties of a tarwad are not alienable in the absence of any necessity for alienation. The declaration of invalidity of the renewal, made by the courts below has therefore to be accepted as right. 3. Though the plaintiff alone has instituted the suit, the decree of the courts below even so far as it goes, is in favour of the plaintiff and the 4th defendant jointly, the latter being the senior lady in the tarwad. In S.A. No. 146 of 1956(K) the plaintiff challenges the refusal of his claim for recovery of the property and the decree being made in favour of the 4th defendant jointly with himself. 4. This appeal having been stayed under Act I of 1957, has now to be decided in accordance with the provisions of the Kerala Agrarian Relations Act, as directed in S.95 of the latter Act. As new provisions governing resumption of property from tenants have been enacted in the Agrarian Relations Act, the claim of the plaintiff to recover the suit property has to be adjudged afresh in the light of those provisions, and for that purpose the suit has to be remitted to the court of first instance, liberty being given to both parties to urge their respective cases there, as contemplated in S.95 (5) of the Act. 5. As regards the junction of the 4th defendant as a co-decree-holder, the contention of the plaintiff appears to be correct. 5. As regards the junction of the 4th defendant as a co-decree-holder, the contention of the plaintiff appears to be correct. The plaintiff is admittedly the karnavan of the tarwad, entitled in law to manage its affairs, and collect the income thereof. He alone has instituted this suit claiming reliefs in his favour. There is no reason why the court should yoke in a co-decreeholder in the circumstances. The award of the decree in favour of the 4th defendant jointly with the plaintiff will therefore be vacated; and the decree made to stand in the name of the plaintiff only. 6. In decreeing the claim for rent, the courts below have allowed the same only with regard to the arrears accrued prior to the suit. The learned counsel for the respondent stated that a court refusing recovery of possession of the property has no jurisdiction to award future rent, that is to say, rent for any period subsequent to the institution of the suit, but gave no reason, nor authority, to support his statement. As the suit was for recovery of property with rent, past and future, the claim for rent extended upto the date when the property would be delivered to the plaintiff, subject, of course, to the limitation imposed by 0.20, R.12 CPC. No reason is given by either of the courts below for refusing a decree for rent that became payable during the pendency of the suit. In a suit for recovery of possession of property with future rent, if a decree for rent from the date of suit to the date of decree can be given on decreeing recovery of the property, I do not see any reason why a like decree for rent for the same period should not be given on disallowing recovery of the property merely because of the conferment of fixity of tenure by legislation, and not because of a finding that the plaintiff had no right to the property or its rent. Further, a suitor is entitled to have a decree soon after the institution of the suit. The delay inherent in the proceedings in a court should not be allowed to prejudice his rights or deprive his dues. Further, a suitor is entitled to have a decree soon after the institution of the suit. The delay inherent in the proceedings in a court should not be allowed to prejudice his rights or deprive his dues. If the trial has been prolonged, or been stayed by statutes like the Stay of Eviction Proceedings Act, 1957, and ultimately the plaintiff's right to recovery of property was taken away by legislation on agrarian reform or debt relief, there is no justification for refusing the plaintiff's claim for future rent also 0.20, R.12 CPC. provides that, in a suit for recovery of landed property and for future rent, the court may even pass a preliminary decree for the possession of the property and direct an enquiry as to the rent become payable after the institution of the suit and pass a final decree for such rent whenever moved to do so by the plaintiff. No rule in the Code of Civil Procedure, or in any other law, has been brought to my notice, which requires the Court to refuse 'future rent' claimed in a suit for recovery of property whenever recovery of property is disallowed. I therefore hold that the plaintiff in this case is entitled to a decree for rent for all the period from the date of suit to the date of this decree. Judgment accordingly. 7. As both parties have succeeded and failed in part they shall suffer their respective costs in these Second Appeals.