NARAYANAN NAMBURI Vs. OUSEPH

JUDGEMENT

(1.) THE plaintiff who is the karnavan of a divided branch of a Nambudiri Illom whose suit for redemption filed on the 24th Karkatakam 1119 numbered as O. S. 746/1119, District Munsiff's Court, Irinjalakuda and the appeal filed by him in the District Court of Anjikaimal (A. S. 404 of 1121) were dismissed, has come up before us in second appeal.

(2.) THE property sought to be redeemed covers an extent of 2 acres and 88 cents of paramba out of a larger area of 3 acres and 60 cents from out of which an extent of 72 cents was assigned by the plaintiff to a stranger. THE entire extent of 3 acres 60 cents was demised to the 1st defendant by the plaintiff's Illom on the 13th of Kanni 1084 under Ext. 11 which is called a kozhuvirakka Panayadharam. THE 1st defendant on even date executed an ethir deed in favour of the plaintiff's Illom which is Ext. A. At a partition between the 1st defendant and others (Ext. C) the property was allotted to other parties thereto and the 1st defendant having retained no part of it, remained exparte in the case. THE allottees at the partition transferred their parcels and defendants 2, 3, 4 and 17 were the owners at the time of the suit interested in various parcels. THEy contested the suit by three separate written statements.

(3.) THE only grounds relied upon by the learned judge being found to be unavailable to sustain his decree, Mr. Mahalinga Iyer, the learned counsel for the respondents raised three points to support the decree of the court below. THE first point was based on S. 36 of the Cochin Tenancy act, XV of 1113. It was stated that within the meaning of that section, the kanamdar must be deemed to have obtained a renewal. THE second point was that the plaintiff has not shown whether he required the whole extent sought to be redeemed for purpose of building a new house for him and the third was that defendants 5 to 15 are admitted in the plaint to be kudikidappukars in the property and that under the Cochin Proclamation dated 18th Edavam 1122, suits for eviction of kudikidappukars shall be stayed. Points 2 and 3 may be disposed of first. THE plaintiff claimed redemption of an extent of 2 acres 88 cents shown in the schedule to the plaint for purpose of building a new house for his residence. THE defendants contended that the purpose relied upon is not true and that redemption is not necessary as the plaintiff had another house. No plea was raised to the effect that in the event of a decree for surrender, the entire extent claimed should not be decreed as the whole is not necessary for the plaintiff. That plea not having been raised, there was no issue about it nor was there any consideration by either of the courts below as to the quantum of the property required for constructing a new residential house. It is a question of fact and in the absence of a plea raised in the courts below, the respondents cannot be allowed in second appeal to raise the plea which would lead to the raising of a new issue and remanding the case for consideration of that new issue afresh. We must also mention that no request was made before us for amendment of the written statement by including a plea that the entire extent claimed should not be decreed. Mr. Mahalinga Iyer, raised the argument that the entire extent is not necessary as though the plea was there on record. On examination of the pleadings it is found that the plea is not there and we, therefore, are not inclined to consider the argument raised as one arising for decision in the case. THE third point has also no foundation because the proclamation referring to kudikidappukars only directs that no suit for eviction shall be instituted against a kudikidappukaran and "all suits filed on or after 5th Vrischigom 1122 corresponding to 20th November 1946 and appeals, reviews revisions, decrees and applications in execution in respect of such suits seeking eviction of kudikidappukars which are now pending in our courts shall, so far as they relate to the prayer for such eviction, be stayed". THE suit out of which the second appeal arises having been filed in the year 1119, the Proclamation is obviously inapplicable and the contention raised based on the Proclamation, has to be rejected.