CHACKU CHUMMAR Vs. ROSSA

JUDGEMENT

(1.) THE defendant is the appellant in this second appeal. THE suit is for declaration of the plaintiffs' right as lessees of the plaint property, for setting aside the decree in O.S. No. 449 of 1117 of the Ernakulam Munsiff's Court obtained by the defendant and for a permanent injunction restraining the defendant from executing that decree. THE plaint schedule property which is a paddy land two acres and 16 cents in extent belonged to Chacku the father of the defendant. Chacku partitioned his properties among his sons under Ext. 1 dated 15.3.1109. THE plaint property fell to the share of the defendant who was a minor at the time. THE plaintiff's case is that long before the partition Chacku had leased the property to their father Lonan under an oral lease and that Lonan had effected improvements in the property by way of putting up an embankment and removing sand from a portion of the property. During the minority of the defendant Chacku, acting as his guardian, sold the property to one Pisharodi on 29.10.1112. Ext. D is the sale deed. Pisharody issued notices to Lonan demanding pattam. Lonan died in 1114. After Lonan's death his heirs, the plaintiffs and their mother Ealy, continued to hold the property on lease. Plaintiffs were minors and Ealy was their guardian. On 14.11.1115 Ealy attorned to Pisharodi and executed a fresh lease deed in his favour. Ext. E is that lease deed. Pattam was being paid to Pisharodi after the date of Ext. E. In the meanwhile, the defendant attained majority and on 2.7.1117 he filed O.S. No. 449 of 1117 to set aside the sale deed, Ext. D. Pisharodi was the first defendant in the suit. THE plaintiffs and their mother were impleaded as defendants 2 to 5. THE mother was appointed guardian of the minor defendants. A Proclamation staying suits for eviction of verumpattamdars was promulgated by His Highness the Maharaja of Cochin on 13.4.1117. Pisharodi contended in the suit that the sale deed, Ext. D, was not liable to be set aside. THE plaintiff's mother Ealy filed a written statement claiming the benefit of the Proclamation. She also contended that Lonan and herself had effected valuable improvements in the property. During the pendency of the suit, viz., on 19.7.1118, the Cochin Verumpattamdars Act came into force. No issues were however framed in the case with regard to the contentions raised by the plaintiff's mother. THE trial court held that Ext. D was invalid and gave the present defendant a decree for recovery of possession of the property with mesne profits on payment of certain amounts to Pisharodi. Ext. B is the decree. It is dated 8.4.1119. Pisharodi appealed from this decree. THE defendant also preferred an appeal in respect of certain portions of the decree which were not in his favour. THE District Court set aside the decision of the trial court and dismissed the suit. THE defendant filed a second appeal in the High Court as S.A. No. 101 of 1120. While the matter was pending in the High Court Pisharodi and the defendant compromised the dispute between them. THE defendant was allowed to recover possession of the property, but Pisharodi was exonerated from liability for mesne profits and costs. Ext. VI is the copy of the decree passed by the High Court. Ext. C is the copy of the judgment. When the defendant sought to recover possession of the property on the basis of the compromise decree the present suit was instituted by the plaintiffs for the reliefs mentioned above.

(2.) THE plaintiffs alleged that the decree in O.S. 449 of 1117 was not binding on them and the leasehold interest in the property for the following reasons. THE first plaintiff had attained majority on 25.6.1120 before the second appeal was filed in the High Court. She was, however, impleaded only as a minor in the second appeal. THE appeal decree is therefore a nullity so far as the first plaintiff is concerned. Though the guardian of the plaintiffs put in a written statement in the trial court she did not do anything further in the case. THE Court was not moved to frame issues relating to the contentions raised by her. No documents were produced in the case and no evidence was adduced. No appeal was filed by her from the decree of the trial court. THE plaintiffs had acquired fixity of tenure in respect of the plaint property by virtue of the Verumpattamdars Act. It was owing to the gross negligence of the guardian that a decree happened to be passed for recovery of possession of the property from the lessees. Since the property was being held on lease by their father even before the date of the sale deed in favour of Pisharodi and since the lease in favour of Pisharodi was only a renewal of the old lease the present defendant was not entitled to a decree for possession in the suit brought by him for setting aside the sale deed. On these grounds it was alleged that the decree was not binding on them and the leasehold interest in the property.

(3.) THE points that were urged before me in this second appeal by learned counsel for the appellant are the following:- 1) THE oral lease in favour of Lonan was surrendered after his death and Ext. E was a new lease taken by Ealy in her individual capacity. THE plaintiffs have, therefore, no right in the leasehold interest in the property. 2) THEre was no negligence on the part of the guardian of the plaintiffs in the defence of the suit, O.S. No. 449 of 1117. 3) In any event the 1st plaintiff's 1/7th share in the leasehold interest was hit by the decree in O.S. No. 449 of 1117. 4) THE decree granting a permanent injunction without providing for the working out of the admitted right of the defendant is in any case wrong.