SANKARAN NAMBOORIPAD Vs. MATHAN

JUDGEMENT

(1.) THE decree in execution of which this appeal arises was passed on compromise in a suit for the redemption of a mortgage of the year 1073. THE first defendant in the suit represented the mortgage interest and defendants 2 to 5 were impleaded as being in possession under him. At the time the decree was passed, part of the mortgaged property, about 94 odd parahs in extent, was paddy land and the rest consisted of Chiras which were held in distinct plots by defendants 1 and 3 to 5. Pursuant to the compromise, the first defendant continued to be in possession of the paddy land, but he surrendered the portion of the Chira in his possession. When in due course the plaintiff took out execution for delivery of possession of the paddy land, he was met by an objection by the first defendant under the Kerala Stay of Eviction Proceedings Act, 1957 (Act 1 of 1957), that he was a lessee thereof under the provisions of the decree and that he could not be evicted. This objection prevailed with the Subordinate Judge, and the plaintiff has appealed against his decision. Defendants 3 to 5 are still in possession of the respective portions of the Chiras, but no question arises with respect to them in the present proceedings.

(2.) THE relevant provisions of the compromise were the following. A sum of Travancore Rs. 3914 and 8 Ch. which represents the mortgage amount and vettozhivu and which had already been deposited in court, was to be drawn by the first defendant. Of the Chira, the first defendant was in possession of 10 cents. For redeeming that portion of the Chira, nervi or special value of improvements amounting to Rs. 1,500/- was payable, this being in addition to the sum of Rs. 3, 914-Ch. 8 aforesaid. Although this latter sum was to be drawn from court by the first defendant, and he surrendered 10 cents of Chira to the plaintiff, Rs. 1,500/- by way of nervi was not paid to the first defendant. Instead, the first defendant was permitted to continue in possession of the paddy land till the 31st Medom,1131 on his undertaking to pay or deliver by the 30th Medom each year an amount of 425 parahs 21/2 edangazhies of paddy by way of "profits" BZmbw. At the expiry of the period, the paddy land was to be surrendered by the first defendant on receipt of Rs. 1,500/- by way of nervi, the actual provision being In the event of the first defendant's refusal to surrender, the plaintiff might on deposit of Rs. 1,500/-execute the decree and recover possession. On default in the payment of the annual profits for two years as stipulated, the decree for recovery of possession was liable to be executed, notwithstanding the provision for continuance in possession till the 31st Medom,1131. THEre were comparable provisions for the payment of nervi to defendants 3 to 5 and for recovery of the Chiras in their respective possession.

(3.) IN A. S. 386 of 1963, a somewhat similar case, a division bench of this Court has also taken the same view of the compromise decree. I hold that no lease under the Transfer of Property Act was created as such by the compromise decree. 5. But learned counsel for the first defendant relied also on definition of the word "tenant" occurring in S. 3 clause (26)of the Kerala Tenants & Kudikidappukars Protection Act, Act 7 of 1963. The relevant part of that definition reads as follows: "'tenant' means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another, to possess and to enjoy the land of the latter and includes-"