BRAHMANAND BHOOTHI SWAMIAR Vs. THOMMI

JUDGEMENT

(1.) Since the main question for decision in these two appeals is the same, the two appeals were heard together and they are disposed of by this common judgment. The decree in O.S. No. 506 of 1121 on the file of the Ettumannoor District Munsiff's Court has given rise to S.A. No. 648/1124, while the decree in O.S. No. 605 of 1121 on the file of the same court has given rise to S.A. No. 527 of 1950.

(2.) The plaintiff in the two suits is the same. O.S. No. 605 of 1121 is for recovery of possession of the plaint property from the defendants who are in possession and enjoyment of the same on the strength of the kanom deed Ext. I dated 23.8.1076, executed by the plaintiff in favour of the defendant's father. Ext. A is the counter deed executed by the tenant in favour of the plaintiff. According to the plaintiff the demise under Ext. A or Ext. 1 is only a redeemable mortgage and accordingly redemption is sought for after setting off the arrears of michavaram and others dues due under Ext. A against the kanom amount. Future mesne profits have also been claimed. The defendants resisted the suit and contended that Ext. A evidences a kanom demise coming within the scope of the Travancore Jenmi and Kudiyan Act and that therefore the plaintiff is only entitled to recover the jenmikaram due in respect of the property and that the claim for the arrears beyond 6 years prior to the date of the suit is barred by limitation. The Trial Court upheld the defendant's contentions and passed a decree for recovery of the arrears of michavaram for a period of 6 years. The decree was confirmed by the lower appellate court in A.S. No. 236/1123. The correctness of these concurrent findings of the lower courts has been challenged in S.A. No. 527 of 1950.

(3.) The kanom document which is the basis of the other suit O.S. No. 506 of 1121 is Ext. A dated 8.2.1106. There also the position taken up by the plaintiff is that the tenure created under the document is only a redeemable mortgage. Accordingly he has sought redemption of the mortgage after setting off the michavaram and other dues which the defendants have left in arrears, against the kanom amount. He has also claimed future mesne profits. The defendants in this suit also resisted the suit maintaining that the tenure under Ext. A is a kanom demise coming under the Travancore Jenmi and Kudiyan Act and that therefore the only relief which the plaintiff is entitled to is recover the arrears of jenmikaram due in respect of the suit property for a period of 6 years prior to the date of the suit. The Trial Court accepted the defendants' plea and gave a decree in favour of the plaintiff only for the recovery of such arrears of jenmi karam. That decree was confirmed by the lower appellate court in A.S. No. 256 of 1123 on the file of that court. The finding that the tenure under Ext. A is a kanom demise coming under the Travancore Jenmi and Kudiyan Act, is challenged in S.A. No. 648 of 1124.