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1961 DIGILAW 441 (KER)

Ittipennu v. Joseph

1961-12-11

T.C.RAGHAVAN

body1961
Judgment :- 1. This second appeal raises a short but interesting question of law, as to whether the landlord is entitled to any ground rent from a kudikidappukaran as compensation for use and occupation, though there is no obligation on the part of the kudikidappukaran to pay rent under his engagement for the use and occupation of the site given to him. The suit was for arrears of ground rent. The undisputed facts are that the defendants were kudikidappukars with no obligation to pay any rent and they had not been paying any rent for the last about 60 or 70 years. The claim for rent was based on the common law principle of reasonable compensation for use and occupation, though there was no contract to pay any rent under the kudikidappu engagement. The trial court found as a fact that the evidence adduced in the case was not sufficient to make out an agreement that the defendants need not pay any rent, though there was no stipulation that they should pay rent either. In the result it held that, though the plaintiff was not entitled, under the contract, to get any rent for the site occupied by the house, he was entitled, under the common law, to get damages for use and occupation of the house-site mentioned in the plaint at the rate of Rs. 6 - per year. On that basis it granted a decree for damages for use and occupation for three years, namely Rs. 18/-, with proportionate costs. Both the parties appealed to the lower appellate court and the learned Subordinate Judge allowed the appeal with costs and dismissed the cross objections also with costs. In the result the lower appellate court fixed the compensation for use and occupation at Rs. 3/- per mensem and granted a decree on that basis for the arrears for three years and made it a charge on the kudikidappu held by the defendants. The defendants have filed the second appeal and the plaintiff-respondent has filed a memorandum of cross objections claiming that the lower appellate court should have allowed him his costs as well in the appeal. 2. The defendants have filed the second appeal and the plaintiff-respondent has filed a memorandum of cross objections claiming that the lower appellate court should have allowed him his costs as well in the appeal. 2. The only question in the second appeal is whether a kudikidappukaran, who, under the Kudikidappu engagement, is not under any obligation to pay rent for the use and occupation of the site given to him, is liable to pay damages or compensation for use and occupation of the same under the common law. The learned advocate of the appellants invites my attention to the definition of kudikidappukaran under S.2 (a) of the Cochin Verumpattomdars Act (VIII of 1118) which reads: 'Kudikidappukaran' means a person who has been permitted to have the use and occupation of a portion of a property for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given." This definition shows that there are two types of Kudikidappus, one with an obligation to pay rent and the other without any obligation to pay rent for the use and occupation of the site. Therefore, the sine qua non of a kudikidappu is not the obligation to pay any rent or any quid pro quo for the use and occupation of the site of the kudikidappu. One who has no obligation or liability to pay any rent under the engagement of kudikidappu is as much a kudikidappukaran as one who contracted himself liable or obliged to pay ground rent for the site. In the latest Act, I mean, Kerala Act IV of 1961, S.38 provides that after the commencement of the Act, notwithstanding any contract, decree or order of court, a kudikidappukaran shall not be required to pay more than six rupees yearly as rent in respect of his kudikidappu, which is not situated within the limits of the Corporation of Trivandrum or of any Municipality; provided that a kudikidappukaran who was not liable to pay any rent in respect of his kudikidappu immediately before the commencement of the Act shall not be liable to pay any rent; nor shall he be liable to pay any rent in excess of that which he was paying before the commencement of the Act. The learned advocate of the appellants stresses before me that the fact of non-liability of the appellants to pay any ground rent up to the commencement of the Act becomes very material, because under the proviso to S.38 the kudikidappukars in such cases are not liable to pay any rent for the future as well. He further contends that when the Statute recognises the non-liability of kudikidappukars in certain cases to pay rent, the landlord has no further right in common law to claim damages or compensation for use and occupation of the site, apart from his right to receive rent under the Statute. 3. The learned advocate of the plaintiff-respondent stoutly opposes this. He invites my attention to a passage in Redman's Landlord and Tenant, 9th Edn. page 255. The passage reads: "Provided there is no lease under seal the landlord may also bring an action for use and occupation to recover a reasonable satisfaction for the lands held or occupied by the tenant. This remedy is available where a person has been in occupation of land without an agreement fixing the amount of rent; but the action may also be brought when a certain rent has been reserved by a verbal contract or by an agreement not under seal. In either case the compensation is recovered as damages for breach of an express or implied agreement to pay for the use of the land, and, where the rent has been fixed, this is evidence of the amount of damages to be recovered, and is usually decisive." He also draws my attention to a decision of the Cochin High Court in Kunhikutty Marasyar v. Antony (VII C. L. J. 61). Therein a Division Bench held that the action for use and occupation was available where the defendant was in possession without any arrangement for the payment of rent properly so called, but the law implied from the conduct of the parties a promise to compensate the landlord for his loss by reason of the defendant's occupation of his premises. Therein a Division Bench held that the action for use and occupation was available where the defendant was in possession without any arrangement for the payment of rent properly so called, but the law implied from the conduct of the parties a promise to compensate the landlord for his loss by reason of the defendant's occupation of his premises. The learned judges extracted with approval in their judgment the following passage from Woodfall on Landlord and Tenant, 22nd Edn: "The action which can in such case be maintained is not to recover rent, but for damages due on an implied agreement to pay for the use of the landlord's property, and arises rather out of what may be called a quasi-tenancy than from the strict relation of landlord and tenant. To quote the words of Lord Ellenborugh in Rochester v. Pierce 'The action for use and occupation does not necessarily suppose any demise; it is enough that the defendant used and occupied the premises by the permission of the plaintiff (p. 670). In the absence of an express lease or agreement for a lease at a fixed rent, where the premises have been used or occupied by the defendant by the permission or sufferance of the plaintiff, the law will imply a contract or promise by the defendant to pay to the plaintiff a reasonable sum for such use and occupation. (P. 671) " 4. The contention of the learned advocate of the respondent comes to this: even if there is no contract to pay any ground rent under the engagement of kudikidappu between the landlord and the tenant, the landlord is entitled to recover by way of damages for use and occupation in common law a reasonable compensation from the kudikidappukaran. This contention has to be very carefully scrutinised. The conception of tenancy under the English Law is succinctly stated in the opening paragraph of Redman's treatise at page 3 in the following terms% "The relation of landlord and tenant was originally one of contract only, but from early times the contract conferred an estate in the land on the tenant without losing all its contractual characteristics. The conception of tenancy under the English Law is succinctly stated in the opening paragraph of Redman's treatise at page 3 in the following terms% "The relation of landlord and tenant was originally one of contract only, but from early times the contract conferred an estate in the land on the tenant without losing all its contractual characteristics. The relation anises as a rule when one party confers on another the right to the exclusive possession of land, mines or buildings, for a time which is either subject to a definite limit originally, as in the case of a lease for a term of years, or which, though originally indefinite, can be made subject to a definite limit by either party, as in the case of a tenancy from year to year. The interest in the property which remains in the landlord is called the reversion, and, as a rule, there is incident to it the right to receive from the tenant payment far the use of the property in the shape of rent". (underlining is mine). This conception of tenancy shows that one of the main incidents of tenancy is the right of the landlord to receive from the tenant payment for the use of the property in the shape of rent. Again on page 76 of the same book the learned author in Para.52 states that one of the essential terms of an agreement for a lease is the rent or other consideration to be paid. If this conception of tenancy is accepted, then the passages from English authors on Landlord and Tenant are easily understandable. If consideration, quid pro quo or rent is an essential ingredient, the sine qua non, of a lease, naturally, if there is no mention of the rent or consideration, the law presumes a covenant to pay a reasonable consideration for use and occupation of the land. It is that payment that is mentioned by Redman at page 255 of his book. 5. The position in the case before me is different. It is common knowledge, and it is not seriously disputed either, that engagements of kudikidappu are quite common without any obligation to pay rent for the use and occupation of the sites given to the kudikidappukars. Payment of compensation for the use and occupation of the site is not an essential ingredient of a kudikidappu engagement. It is common knowledge, and it is not seriously disputed either, that engagements of kudikidappu are quite common without any obligation to pay rent for the use and occupation of the sites given to the kudikidappukars. Payment of compensation for the use and occupation of the site is not an essential ingredient of a kudikidappu engagement. That practice has already been recognised by statute in the definition of kudikidappukaran in S.2 (a) of the Cochin Verumpattomdars Act. The rights and liabilities of such a kudikidappukaran are now regulated by Kerala Act IV of 1961 Kudikidappukaran has also been defined under S.2 (20) of Act IV of 1961 in similar terms; and the proviso to S.38 of the Act confers on a kudikidappukaran, who has not been paying any rent immediately before the commencement of the Act, a non-liability to pay any rent for the kudikidappu thereafter. Therefore, whatever might be the position in common law regarding the right of the landlord to claim damages for use and occupation from the kudikidappukaran in a case where there is no liability under the engagement to pay any rent, when the Statute has intervened and regulated the relationship between the landlord and the kudikidappukaran, the landlord cannot have any further right, independently of the rights conferred on him by the Statute, to claim any damages or compensation in common law for use and occupation against the kudikidappukaran. If the contention of the learned advocate of the respondent is accepted, the result will be that, even in a case which falls under the proviso to S.38 of Kerala Act IV of 1961, the landlord will have a right to claim damages for use and occupation of a site, for which he is not entitled to collect any rent, because of the prohibition contained in the said proviso. Such a result is not contemplated by the law, nor can it be allowed. The result is that in a case like the one before me, where the kudikidappukaran has no obligation to pay rent under his engagement of kudikidappu for the use and occupation of the site in his possession, the landlord has no right to claim damages or compensation for use and occupation of the same. The second appeal is therefore allowed, the decision of the lower courts is set aside and the suit is dismissed. The memorandum of cross objections is also dismissed. The second appeal is therefore allowed, the decision of the lower courts is set aside and the suit is dismissed. The memorandum of cross objections is also dismissed. In the circumstances of the ease, both parties are directed to suffer their costs throughout. Allowed.