ANANDAN Vs. KUNHI POKKER

JUDGEMENT

(1.) HIS appeal by the first defendant, is against, the concurrent decrees by the two lower courts, whereby the plaintiff respondents claim to evict the appellant, been decreed. The property in dispute belongs to defendants 2 to 11, who had executed a registered marupat Ext. A (1) on March 4, 1950. I would extract below the translation of the aforesaid documents which has been furnished to me by the appellants learned advocate, Marupat given executed, on the 20th of Kumbhom 1125 corresponding to the 4th March 1950, in favour of Moovakkat Mariyumma, daughter of Moideen Kutty, no occupation, Anayitukka Desom, Kannoor Kararinakam, chirakkal Taluk, by Chemminian Anandan, son of Devaki alias Kalyani, Thiyya, employed in stone-quarrying, residing in the abovesaid Kararinaka, Kanhareri desom. I have this day obtained from you on verumpattakudiyiruppa right for three years from today the paramba and all the improvements therein as well as the house and the well, intended for the protection of the improvements, which belong to you in jenm and which are in your possession and which are described in the schedule on a purappad (rent) of Rs. 100/- per year. You have this day given possession of the paramba and the improvements therein to me and have agreed to give possession of the house and the well, which are now in the possession of the tenant, after evicting him. On this stipulation you have this day obtained from me in cash Rs. 300/- (rupees three hundred only), in advance, being the rent for the above mentioned three years, and have passed the receipt therefor to me. Accordingly, I am to keep possession of the paramba and the improvements from today and the house and the well from the date on which you give me vacant possession thereof, after evicting the tenant; I am to look after the improvements and do the seasonal protections by turning the soil, manuring the cocoanut trees etc. ; I am also to thatch the house after I obtain possession thereof; I am to keep possession of the paramba and enjoy the usufructs of the improvements and to reside in the house; and I shall surrender the property and give direct possession of the same to you unconditionally on the expiry of the term of three years. I am also agreeable to your evicting me before the expiry of the term with damages, if I fail to do the seasonal protection at the appropriate time, or to thatch the house and thus causing damage to the improvements and the house, or if I cut trees or branches of trees, or if I hand over possession to anybody else except to you direct. As I have no higher right than Verumpatta Kudiyiruppa over these properties, I am not entitled to make any kuzhikoors (improvements) in the properties and I cannot at all prevent you from making any Kuzhikkoors. If I fail to surrender the property on the expiry of the term, you are entitled to recover from me and i am bound to give you a purappad of Rs. 115/- per year until I surrender the property or until you evict me. There is no manusham (Premium) for this deed. The total purappad for one year is Rs. 100/- Schedule Konhante Valappu parampa, the entire improvements therein, house and well. . . . . 2 acres 80 cents.

(2.) TO continue with statement of facts, the entire rent for the term of three years had been paid in advance, and on June 20, 1950, the 2nd defendant received a further sum of Rs. 115/-, being the advance rent for a year for the period subsequent to March 4, 1953. But prior to the sale, again the lessors on May 20, 1951, received a yet further sum of Rs. 115/-, being advance rent for a year after March 4, 1954. The lessors then sold the property to the plaintiff on June 6, 1952, by a deed, which is Ext. A (2 ). Both the documents concerning the subsequent receipts have been found by the two lower courts to be correct; and because of such receipts the tenant would not be liable to eviction earlier to March 4, 1955. The plaintiff, however, instituted the suit for eviction on July 27, 1953, claiming that the period under Ext. A (1) had expired on March 3, 1953, and, he was, therefore, entitled to evict, the transaction not being protected by the Malabar Tenancy Law. The defendant took the objection that the suit was premature, and the second issue framed in the suit is whether the suit brought was premature. The decision in the case was given on March 18, 1955, and the trial Court held that because on the date of the judgment the plaintiff had become entitled to eviction, the tenant should be evicted. That conclusion has been sustained by the lower appellate court. The two lower courts have further held that the 1st defendant was not entitled to any statutory benefit under the Malabar Tenancy Act. Therefore, the two questions inviting adjudication in this appeal are how far the two lower courts have correctly taken note of the subsequent event and have allowed the suit, where the plaintiff had no cause of action on the day the plaint was filed in court. The other question is whether the tenant had only a bare licence to enjoy the usufructs and therefore not entitled to any statutory protection.

(3.) IT is obvious that the use of the word possession means the right to exclude others from interfering with corpus of the property, and with the animus to do so for the holders benefit. IT is equally clear that the inevitable consequence of being given juristic possession is that the person is not merely permitted to do particular acts, and with such a permission becoming only a licensee. Therefore, the use of the word possession in the document is significant, and excludes the appellants being treated as a bare licensee. IT means that the appellant has not been allowed by the lease the bare permission to attend to the trees and to enjoy their fruits. IT further means the power to exclude others from the area, and with such a right there is no force in the argument that the appellant is a licensee or in malabar phraseology, holder of the right under melpattom. That word has been described in the Glossary of Terms in Sundara Iyers book on Malabar and aliyasanthana Law, at p. 453 in these words:- Melpattom: Lease of trees with no interest in land; enures for one year. The same learned author at page 290 of the same book again describes the word in these words:- Melpattom is a lease of trees and enures for one year unless a special term is fixed. The conclusion is further strengthened from a cursory reading of the other parts of the document, which show that something more than mere lease of trees has been conferred. To begin with, the deed states what is described in the schedule to have been obtained, and that schedule shows the area of paramba with house, well, gardens and the trees, to be 2 acres and 80 cents. IT follows that the whole have been leased. The next thing is that the appellant gets possession of the paramba and of the house as well after evicting the tenant. The third is that the appellant must turn the soil, manure the trees, thatch the house, keep possession of the paramba, enjoy the usufructs of the improvements and to reside in the house. IT is also clear that on the expiry of the period the property has to be surrendered and possession has to be given. The document further provides for earlier eviction if the appellant failed to do the seasonal protection, thatch the house or cause damage to the improvements. I am convinced on a fair reading of the entire document, that it cannot be treated as a bare lease of the trees for purposes of enjoying the usufructs, and complete possession over the, adjoining area with the right to exclude all others, has further been conferred.