VASUDEVAN NAMBURI DAMODARAN NAMBOORI Vs. OUSEPH THARIATH

JUDGEMENT

(1.) Plaintiff is the appellant in this Second Appeal. The suit is for arrears of michavaram and renewal fee. The plaint schedule properties belong to the plaintiff's illom. They were demised on kanom in favour of the defendant in the year 1095. Plaintiff filed O.S. No. 7 of 1114 of the District Munsiff's Court of Cranganore for renewal of the kanom with enhanced michavarom. He also claimed in the suit arrears of michavaram, and renewal fee that accrued due till the date of suit. The present defendant who was the first defendant in the case contested the suit. He claimed relief under the Cochin Agriculturists' Relief Act, Act XVII of 1114, and deposited michavaram as per the provisions of that Act. It was held in the suit that the defendant was entitled to the benefits of the Agriculturist's Relief Act and a decree was given for renewal of the kanom. The judgment is Ext. 4 dated 28.2.1115. There was an appeal from the judgment and also a second appeal. The final decree of the High Court is Ext. B dated 6.3.1119. The High Court confirmed the decree of the Trial Court subject to certain slight modifications. The defendant was directed to take a renewal of the kanom within six months from the date of the High Court decree. On 15.12.1120 plaintiff filed an execution petition for directing the defendant to deposit the michavaram from the year 1116 onwards and to take a renewal of the kanom. A fresh kanom document, Ext. 1, was executed by the plaintiff on 26.4.1121 and the defendant executed an Ethir deed. On 14.7.1121 plaintiff filed an execution petition for realising from the defendant michavaram from the year 1116 till the date of renewal of the kanom. This was opposed by the defendant and the execution court passed an order Ext. F on 13.10.1121 dismissing the execution petition on the ground that there was no provision in the decree for realising the michavaram that accrued due after the date of suit. It was observed in the order that the plaintiff's remedy, if any, was to seek to amend the decree of the High Court or to file a separate suit. The plaintiff then issued a notice, Ext. J. to the defendant demanding payment of michavaram that accrued from 1116 to 1121 and also the renewal fee that fell due in 1119. To this the defendant sent a reply, Ext. L, on 23.10.1121 to the effect that he was prepared to pay the amounts lawfully due to the plaintiff after giving credit for the amounts deposited by him in O.S. No. 7 of 1114. But no amounts were paid by the defendant and, therefore, the plaintiff filed this suit on 20.3.1122.

(2.) The defendant contended that the plaintiff was not entitled to any relief on the basis of the kanom deed of 1095 as it was superceded by the deed of 1121 and that since the plaintiff did not claim any relief in O.S. No. 7 of 1114 in respect of the michavaram from 1116 till the execution of the renewal deed he was debarred from claiming the same in a fresh suit. It was also contended that in any case the plaintiff was not entitled to the renewal fee claimed in the suit. The Trial Court upheld these contentions and dismissed the suit. The appeal filed by the plaintiff in the District Court was also dismissed. So far as the claim for renewal fee is concerned it was conceded by learned counsel for the appellant that the appellant is not entitled to claim it by reason of Proclamation X of 1119.

(3.) One of the questions that arise for consideration in this second appeal is whether the plaintiff is debarred from claiming michavaram from 1116 to 1121 under the kanam deed of 1095, Ext. A, by reason of the fact that that kanam deed was superceded by the renewal deed of 1121, Ext. 1. The other question is whether the suit is barred under O.2, R.2(ii) of the Code of Civil Procedure on account of the fact that the plaintiff omitted to claim in the prior suit michavaram from the date of that suit till the execution of the renewal deed.