MARTHA NICHOLAS Vs. YESAMMA

JUDGEMENT

(1.) The petitioner herein is the owner of 8 1/2 cents of land in Fort Cochin in which stands a house built by the husband of the respondent about 50 years ago on the strength of an oral lease of the site on a rent of Rs. 3 a year. The house has since then been in the occupation of respondents family. It occupies an area of 67 1/2 square yards or roughly 1.4 cents of land and apart from the occupation of the house, the respondent has admittedly no other interest in the land, the usufructs therefrom having always been enjoyed by the owner. (These facts appear from the report of the commissioner appointed in the case and from the evidence of the respondent herself). The respondent applied under S.34 of the Malabar Tenancy Act 1929, as amended by Madras Acts 33 of 1951, and 7 of 1954, for the purchase of the rights of the petitioner in the land, and that application having been allowed by the court below (the Munsiffs Court, Cochin) to the extent of 5 1/2 cents on the finding that this plot (being the site of the respondents house and the additional land necessary for its convenient enjoyment) formed a Kudiyirippu and was not a kudikidappu, the petitioner has come up in revision.

(2.) A preliminary objection has been taken that this revision is not competent since an appeal lay. With regard to this objection I might, in the first place, observe that, if an appeal lay at all, it lay to the Subordinate Judges Court, Cochin and not to this court so that this courts power of revision would not be excluded by the language of S.115 of the Civil Procedure Code which confers that power with regard to all cases in which no appeal lies to this court. Secondly, whereas under the original Malabar Tenancy Act of 1929, an appeal was provided by Sub-s.(2) of S.50 from an order made under S.34 of that Act (which corresponds to S.34 of the present Act) as if the order were a decree in a suit, there is no such provision in the present Act which, by S.17, appears to provide for an appeal only from an order passed by the Rent Court under S.16. The first sub-section of the old S.50 which provided that the procedure with regard to suits in the Code of Civil Procedure shall be followed as far as it can be made applicable in all proceedings relating to applications under the Act, has been retained in the corresponding present section, S.49, but sub-s.(2) of that section providing for appeals has been omitted. The intention seems to be clear that there should be no appeal from an order under S.34.

(3.) It is however argued on the strength of the decisions in Adaikappa v. Chandrasekhara (AIR 1948 Privy Council Page 12) and Samburajanadar and another v. Purushotham Ramji (1959 KLJ page 378) that notwithstanding that the special Act namely, The Malabar Tenancy Act, does not provide for an appeal, in so far as the matter is decided by an ordinary Court, an appeal will lie under the provisions of the Civil Procedure Code. Now, an appeal can lie under S.96 of the Code only if the order in question is a decree as defined by the Code. That it obviously is not, for, it is an order made in an application and not in a suit, so that the primary requisite that the adjudication should determine the rights of the parties in controversy in the suit is wanting. In both the cases relied upon, the order considered was an order made in a suit, and the only question that arose was whether it otherwise satisfied the requirements of a decree. I might in this connection remark that, while S.34 of the Act only declares the Kudiyirippu holders right to purchase his landlords rights, and there is nothing in that section or in the Act to indicate how this right is to be enforced so that, ordinarily, it would be by way of suit (sub-section (1) of S.50 of the original Act) by referring to applications under the Act, and sub-s.(2) by saying that an order made under S.84 was appealable as if it were a decree in a suit, implied that the relief was obtainable by way of an application) R.4 of the rules made under S.57 of the Act provides for the particulars to be furnished in an application under S.34 of the Act so that it may be taken, as was assumed on all hands that the right given by S.34 can be enforced by a mere application.