KRISHNAN KUTTAN Vs. CHACKO

JUDGEMENT

(1.) This Second Appeal arises out of a suit for eviction. The case is governed by the Cochin Verumpattamdars Act. The landlord sought eviction on the ground that he required the holding bona fide or building a house for the residence of his son. The tenant, 1st defendant, contended that the requirement was not bona fide and that it was put forward only as a pretext to evict him and defeat the provisions of the Verumpattamdars Act granting fixity of tenure. Upholding the tenant's contention the District Munsiff dismissed the suit on the 29th Meenom 1119. An appeal which the plaintiff filed against the Munsiff's Court decree was also dismissed by the District Court on the 2nd Karkadagom 1120. But on Second Appeal the case was remanded to the Munsiff's Court for fresh trial and disposal. The decision in the second appeal is reported in 38 Cochin Law Reports 233. After the retrial held in pursuance of the remand order the learned Munsiff found again that the landlord did not require the land bona fide, and that the requirement put forward in the plaint was only a pretext for evicting the tenant and defeating the provisions of the Verumpattomdars Act. The plaintiff again filed an appeal in the District Court. That appeal was first heard by Mr. P. Nandana Menon on 1.2.1950, and he passed a remand order on 6.2.1950. The learned Judge considered that eviction had to be allowed with regard to so much of the property as is proved to be necessary for the purpose alleged in the plaint, and remanded the suit for a finding on a new issue raised by him, namely, "Is the whole of the plaint schedule property required for the residential purpose alleged by the plaintiff If not, with regard to what portion is he entitled to eviction What is the compensation payable to the defendant on such eviction - The District Munsiff who tried the new issue found that one half of the plaint property, namely, 2 acres covered by plots A, B, C and F in the plan submitted by the commissioner, was required by the landlord for putting up a residential building as stated in the plaint. After the submission of the finding on the new issue, Mr. Nandana Menon's successor in office, Mrs. Anna Chandy, reheard the appeal on 20.2.1951. She allowed the appeal in part and passed a decree in the suit allowing the plaintiff to recover possession of the 2 acres comprised in the District Munsiff's finding on the new issue. A sum of Rs. 961-3-6 was also ordered to be paid by the plaintiff as compensation to the tenant in respect of this plot. At the rehearing the respondent's counsel attempted to argue that the landlord's requirement was not bona fide at all. But the learned Judge held that she was bound by the remand order passed by her predecessor, Mr. Nandana Menon, and that she could therefore consider only the extent of the land that could be allowed to be recovered by the landlord. From the decree passed by Mrs. Anna Chandy after the rehearing, the 1st defendant tenant has filed this second appeal.

(2.) The appellant's only contention in this court is that the landlord's requirement is not bona fide at all and that the suit should therefore be dismissed in toto. The respondent's learned counsel contended that as the 1st defendant has not filed a C.M. Appeal against the remand order passed by Mr. Nandana Menon on 6.2.1950, it is not open to the appellant to contend that the requirement is not bona fide at all and that the appellant could be heard only on the question as to the extent of the portion that the landlord could be allowed to be recovered. By the order of 6.2.1950 Mr. Nandana Menon did not reverse the decree of the Trial Court and remand the case for a fresh disposal. The remand order passed by him was one under O.41 R.25 and not one under O.41 R.23. A C.M. Appeal can be filed only against an order passed under O.41 R.23, and not against one passed under O.41 R.25. No doubt the court which reheard the appeal after the remand under O.41 R.25 and the submission of the Trial Court's finding on the new issue is bound by the observations made in the remand order and cannot go behind those observations. But as there is no provision in the Civil Procedure Code for a C.M. Appeal against an order under O.41 R.25, it will be open to the parties to canvass in the second appeal against the final decree of the appellate court the merits of the remand order.

(3.) On the question whether the landlord's requirement is bona fide or not, I am, decidedly of the opinion that the finding of the District Munsiff is correct. The learned District Judge seems to think that, as the landlord has sold away after this suit was filed other building sites which he had in the locality, and the plaint property is the only building site he has at present in that locality, his requirement must be deemed to be bona fide. The question to be considered is not whether he now requires the land bona fide but whether at the time of the institution of the suit he required the land bona fide. The sales of other building sites in the locality after this suit was filed is a very strong piece of evidence to show that the requirement at the time of the institution of the suit was not bona fide and that it was advanced merely as a pretext for evicting the tenant and defeating the provisions of the Verumpattamdars Act. There is considerable force in the contention that the subsequent sales were made in order to make it appear that the landlord has now no building site in the locality. As pointed out by the learned Munsiff the plaintiff had in his possession other building plots including property adjacent to the plaint property. The son for whose residence the plaintiff wanted to construct the building was only a bachelor aged 20, and there was then no necessity at all for a separate house for him. All the surrounding circumstances have been set forth and carefully considered by the learned Munsiff in paragraph 6 of his judgment dated 30.10.1123 and in view of the exhaustive consideration he has bestowed on them it is not necessary for me to repeat here all those circumstances. I hold that the landlord's requirement alleged in the plaint was not bona fide at all, and that the landlord is not entitled to recover possession of the plaint property from the tenant.