MUHAMMAD Vs. AMU KOCHO

JUDGEMENT

(1.) This second appeal arises out of proceedings in execution of an eviction decree. The decree which was passed by the Court of the District Munsiff of Cochin on 9-2-1114 related to an item of immoveable property situate within the municipal limits of Mattancherry. The tenant had constructed three buildings thereon. As per the terms of the decree the decree holder was entitled to recover possession of the holding together with past and future rent on payment of an amount of Rs. 245/- to the tenant towards value of improvements. This amount represented the value of the three buildings and other improvements. The decree allowed set off of the amounts due by the tenant towards the value of improvements. As per an execution application (E. P. 704 of 1115) dated 30-3-1115 the decree holder sought recovery of possession of the property and the court allowed delivery. Pursuant to the order the decree holder obtained possession of the land and as for the buildings he said he did not press their delivery then. The execution petition was accordingly dismissed. Vide order dated 11-6-1115. The land was delivered on 18-4-1115. E. P. 704 of 1115 pursuant to which delivery of land was effected showed that after the set off of the value of improvements the decree holder had to obtain from the tenant Re. 5-7-10. Four subsequent execution petitions were thereafter filed by the decree holder and the proceeding giving rise to this second appeal arose out of the objection raised to the fourth one viz., E. P. 1033 of 1122. By his objection petition M. P. 1980 of 1122 defendant 1 contended that under Proclamation XVI of 1122 (Cochin) the decree holder was not entitled to obtain delivery of the buildings. The execution court upheld that objection and that was confirmed by the Temporary Additional District Judge of Anjikaimal who heard the decree holder's appeal from the order of the execution court. Hence the second appeal by the decree holder.

(2.) Throughout the decree holder's contention has been that Proclamation XVI of 1122 had no application to the case in as much as the said Proclamation prevented only "the eviction from his holding of a verumpattomdar who has a house of his own in the holding and who or the members of whose family are residing therein". The point of the contention was that when the execution court had allowed delivery of the holding to the decree holder after satisfying itself that no amounts were due by him to the tenant the latter had lost his title to the buildings and that thereafter the buildings belonged to the decree holder. This view point did not find favour with the courts below and when the second appeal first came up for hearing the decree holder obtained leave to raise an additional ground of appeal that the Proclamation was ultra vires the constitution of India. When the case was before the lower courts or when the second appeal was preferred there was no occasion to raise any such point as the Constitution came into force long afterwards. As the additional ground raised by the appellant related to a constitutional question the case was first referred to a Division Bench and afterwards to a Full Bench. However when the case came up before us the appellant's learned counsel stated that according to him the appeal must succeed on the merits and that he had taken the constitutional point only by way of abundant caution. We heard arguments on the merits and as we felt the appeal could be disposed of in favour of the decree holder on the merits we did not hear arguments on the constitutional point.

(3.) To attract the application of Proclamation XVI of 1122 to the case the lower courts thought that it was enough if any portion of the decree subsisted. Such an approach is unwarranted by the terms of the Proclamation. It gives protection to a verumpattomdar who has a house of his own in the holding and who or the members of whose family are residing therein. The decree holder does not dispute that the second requirement was satisfied here but his point is that the title to the buildings had long before the Proclamation passed to him. We cannot accept the view point of the lower courts that the title will pass only with the delivery. No doubt, the delivery order was not made after notice to the defendants but they never raised a contention that the statement of accounts in the execution application was wrong or that under the terms of the decree any amount was due to them from the decree holder when delivery was alleged and decree holder got possession of the land. The only reasonable inference to be drawn from the order dismissing E. P. 704 of 1115 is that the defendants were allowed to remain in the house by the decree holder's leave and licence. That concession cannot postpone the passing of the title to the buildings to the decree holder. After the order for delivery if the decree holder had allowed the decree to get barred we could not think of any possible objection for him to bring a fresh suit to recover possession on the strength of his title nor could the defendants have effected a valid sale of the buildings after the said order.