UMMAR Vs. MEENAKSHI NEITHIAR AMMA

JUDGEMENT

(1.) The plaintiffs, as representing their tavazhy which owned the jenmom right of the suit properties, sued in O. S. 355 of 1941, for redemption of the kanom with respect to them, impleading defendants 1 to 4 therein as the kanomdars, defendants 5 and 6 as the usufructuary mortgagees of the kanomdars, and the 7th defendant who is the sole defendant in this suit, as the lessee of defendants 5 and 6. That suit was decreed on a petition of compromise, Ext. A3 dated the 19th November, 1941, by which all the defendants surrendered their rights, including possession of the properties, to the plaintiffs. While the plaintiffs were thus in possession, it is their case, that they granted to the defendant in certain years, a right by way of licence, to raise paddy seedlings for cultivating other lands and that he trespassed upon the properties on the 3rd June, 1952, corresponding to the 21st Edavam, 1127. So this suit was instituted at first for injunction to restrain the defendant from disturbing the plaintiffs' possession and it was afterwards amended as for recovery of possession of the properties with mesne profits. The defendant contended that the properties, inclusive of the kuzhikoors thereon, have been leased to him, and that he is not a licensee for raising seedlings as alleged. The Munsiff held that he is a lessee of the land but not of the kuzhikoors as contended, and directed the defendant to surrender the kuzhikoors with mesne profits, but in appeal the District Judge gave the plaintiffs a decree for possession of the properties, inclusive of the kuzhikoors, with mesne profits.

(2.) The suit being on title which was admitted, and having been laid within 12 years of Ext. A3, the petition of compromise, the plaintiffs are entitled to a decree for possession, unless the defendant can sustain his defence, that he is a lessee of the properties. The kuzhikoors consisted of about 110 palmy rah trees, besides other trees and bamboo clusters. The defendant attempted a theory, that even the original lease to him by the mortgagees comprised the kuzhikoors. The District Judge rightly held that Ext. A7, the prior lease deed, did not comprise the kuzhikoors, and that whatever right the defendant had under it, was surrendered to the plaintiffs by Ext. A3. There is no truth in the several explanations offered by the defendant either as to his participation in Ext A3 or as to its effect. The Munsiff misunderstood altogether the scope of Ext. A3 itself. It is quite improbable to think, that as contended, a fresh lease was given to the defendant on the date of Ext. A3 and that too not only of the land but also of the kuzhikoors. The defendant persisted in his plea of a lease of the land and the kuzhikoors from the date of Ext. A3 and even examined witnesses to speak in support of it. Though at one stage, the defendant admitted as Dw. 1 that he had no possession of the kuzhikoors, in other parts of his testimony he adhered to his plea; a substantial part of the oral evidence be adduced, that he enjoyed the kuzhikoors by collecting fronds from palmy rah trees and cutting thorns from bamboo clusters, stands discredited even by the Munsiff who partially gave him a decree. There was no warrant for the Munsiff to find an intermediate case for the defendant, of a lease of the properties without the kuzhikoors. It is unnecessary to deal in particular with the evidence of the defendant's witnesses, who on the issue of lease have been discredited by the Judge, except to state, that Dw. 2 was contradicted by the affidavit which he had filed, Dw. 3 has been a friend of the defendant from boyhood & Dw. 4 was under obligations to the defendant on a promissory note for Rs. 600/-. I agree with the District Judge in holding, that the defendant has not proved a lease of the land.

(3.) The defence raised to the suit being unsuccessful, permission was sought by C. M. P. 673 of 1964 to take an additional point under S.7 of the Kerala Land Reforms Act, 1963 (Act I of 1964), which is in the following terms: