VELU Vs. PADMANABHA MENON

JUDGEMENT

(1.) THE decree in this case was for eviction of a lessee and recovery of arrears of rent. THE trial court decree is dated Karkitakam 15 ,1120 and the appellate decree by the erstwhile Cochin High Court was on kumbham 27,1122. THEre was an amendment of the decree at the instance of the judgment-debtor who is the appellant herein, and after the amendment the decree was for the decree-holder to recover possession of the properties scheduled to the decree. Accordingly, in execution the decree-holder obtained physical possession of the property on Makaram 24, 1123. THEreafter he filed an execution petition for realisation of the money portion of the decree. Objection was raised by the judgment-debtor that the decree-holder had taken possession of certain fruit-bearing trees which were his plantations on the property, that he should be allowed to remove the same from the land, that he should be given the income of those trees taken by the decree-holder since the date of the delivery and that such amount must be set off against the amount due from him under the decree. THEse objections were over-ruled by the learned district Judge by his order dated June 18, 1956. THE judgment-debtor has therefore preferred this appeal.

(2.) THE main question that arises for consideration is the judgment-debtor's right to the trees which are claimed to be his improvements. His right to set off the income of such trees must necessarily depend upon his rights to the trees themselves. It is freely admitted by the judgment-debtor that the decree did not provide for payment of compensation for his improvements, nor did it provide permission for him to remove any tree from the property. THE contention is that under the law as enacted in S. 6 of the Cochin tenancy Act XV of 1113, reiterated subsequently in the Kerala Act 29 of 1958, the tenant is entitled to remove his own plantations and other improvements on the property without causing substantial injury to the land as such and therefore even in the absence of a specific provision in the decree he is entitled to exercise that right of his in respect of those trees and have them removed now. This contention is unacceptable to me.

(3.) RELIANCE was placed by the learned counsel for the judgment-debtor on Parameswaran Namboodiri v. Cheriyakku (1 Cochin 43) where the decree-holder claimed damages in respect of waste committed by the judgment-debtor by "destroying some trees which were treated as improvements and for which compensation was awarded in the decree for redemption". It was held therein that the tenant was "entitled to remove and appropriate to himself any trees that he has planted provided that he leaves the property substantially in the state in which he received it". It was argued on the basis of this judgment that even if the tree has been subject of an adjudication in the decree, the judgment-debtor is entitled to remove the same if it was his own plantation; and here, in the present case, the trees claimed by him not having been the subject of any adjudication in the decree his rights stand on a better footing I am unable to accede to this contention either. If it is accepted, it will be allowing a party to over-ride the adjudication of court by the decree in the suit. The decree in the case was for recovery of possession of the property with all the trees thereon and to allow the judgment-debtor to remove the trees from the property would be to allow him to violate the decree according to his will and pleasure. It is pertinent to note in this connection the provisions of S. 6 of the Cochin Tenancy Act XV of 1113. It provides: "whenever a court passes a decree or order for eviction against a tenant and such tenant has erected any building, constructed any work or planted any tree which, the court finds is not an improvement for which compensation can be claimed, but which, the court finds can be removed without substantial injury to the holding, such tenant may remove such building, work or tree within a time to be fixed by the court in its decree or order. The court may from time to time extend the time so fixed" Here the right of removal of the tenant is confined to trees which have not been compensated for by the decree, and has to be provided for in the decree itself, implying that, if there is no provision for their removal in the decree, the tenant will not be entitled to remove the same. In the light of this express provision, I have to respectfully dissent from the dictum expressed in 7 Cochin 43.