ITTIPENNU Vs. JOSEPH

JUDGEMENT

(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 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:

(3.) The learned advocate of the plaintiff respondent stoutly opposes this. He invites my attention to a passage in Redmans Landlord and Tenant, 9th Edn. page 255. The passage reads: