KUNJUVAREED Vs. RADHALEKSHMI NAITHIYAMMA

JUDGEMENT

(1.) THIS is an appeal by the 1st defendant in O. S. No. 24 of 1121 of the District Court of Anjikaimal and the main question that arises for our consideration is whether "waste" to form a ground for eviction under S. 8 of the Cochin Verumpattomdars Act, VIII of 1118, should be committed subsequent to that enactment or whether waste committed prior to that enactment will also suffice.

(2.) WASTE may be either voluntary or permissive. It is voluntary, for example, when a house is pulled down and it is permissive, when the tenant just suffers it to collapse for want of necessary repairs. The appellant has a contention that S. 8 (b) contemplates only 'voluntary waste', that is, waste which is actual or commissive and not permissive waste, which is a matter of negligence and omission only. It is admitted by the learned counsel for the respondent that there is no positive evidence of waste either voluntary or permissive after the date of the enactment and so it will be unnecessary for us to consider this point, if our conclusion is that waste to found eviction under the Cochin Verumpattomdars Act, VIII of 1118, should be waste subsequent to the enactment and not anterior to its coming into force.

(3.) A second question that arises for consideration is about the existence and validity of the oral agreement alleged by the plaintiff in paragraph 4 of the plaint as having taken place on 22. 2. 1095 by which the annual pattom of Rs. 276/- payable for the holding was agreed to be paid partly in cash and partly in kind, Rs. 138/- by the 30th of Medom and 220 paras and 8 edangalies of paddy by the 30th Vrischikam every year. The lower court dealt with the question as to whether the agreement is true as follows in paragraph 8 of the judgment: "the first question for consideration is whether the said agreement is true. In this connection the conduct of the 1st defendant may be taken into account. In para 3 of the written statement the 1st defendant would freely admit that he has paid paddy as pattom to the Kovilagom. If there was no agreement as the one set up by the plaintiff, it is not likely that the lessee would pay it in paddy. It is not an isolated payment that is admitted by the 1st defendant. He has paid it in paddy many a time. This admission of the 1st defendant and the conduct evidenced by such payment is a very strong circumstance in support of the plaintiff's case. Another circumstance in support of the plaintiff's case on this point is the fact that this is not the first time that the plaintiff has set up this case. The present case is set up as early as in the year 1114. Ext. I is the copy of the decree in O. S. 781/14 of the local Munsiff's Court. A perusal of that document would show that the present case is set up in identical terms in the plaint in that case. The year, the month and the date of the agreement is stated in the plaint and the arrears of pattom was claimed in that suit on the basis of that agreement. The present 1st defendant was a party to that suit. In fact he contested that case but he would admit that his contention related only to the scaling down of the amount under Act XVIII of 1114. He did not question the correctness of the amount claimed in that plaint. This conduct is also a very strong piece of evidence in support of the plaintiff's case. The plaintiff took out execution for the amount covered by the decree and proclaimed the properties for sale. At that stage the 1st defendant deposited the amount and paid off that debt. The circumstantial evidence alone is sufficient to prove the plaintiff's case regarding the new agreement. But there is direct evidence also to support the circumstantial evidence. The Thandapper account kept by plaintiff for the years 1119 and 1120 are produced in this case as Exts. M and O. They show clearly that the pattom per year is Rs. 138 and 220 paras and 3 edangalies of paddy. These account books are kept in the course of business and they are proved by the Manager of the plaintiff who is examined as Pw. 7 in this case. Ext. Q is the thandapper for the year 1118 which supports Exts. M and O. Other vouchers are also produced in this case to prove this point. I have no hesitation in believing Pw. 7 when he swears to the plaint case on this point. I disbelieve the 1st defendant. I find the agreement set up in the plaint true". and we see no reason to differ from the finding especially in view of the appellant's conduct in O. S. 781 of 1114 of the Court of the District Munsiff, Ernakulam.