KALLYANI AMMA Vs. KUNHAMBU NAIR

JUDGEMENT

(1.) DEFENDANTS 1 and 2 in O. S. 182 of 1975, Munsiff's court, Payyannur are the appellants. The plaintiff in the suit is the 1st respondent and the 3rd defendant is the 2nd respondent herein. The suit is for recovery of a sum of Rs. 300/-by way of damages. By Ext. A1 dated 22-7-1974 the 3rd defendant granted a 'melpattom' authorising the plaintiff to collect the usufructs in the property for five years. The plaintiff alleged that on 5-4-1975 defendants 1 and 2 trespassed into the property and unauthorisedly plucked cashewnuts and jack-fruits worth Rs. 300/. They are liable to pay this sum of Rs. 300/. DEFENDANTS 1 and 2 contended that the plaintiff had no right to the usufructs. Ext. Al 'melpattom' executed by the 3rd defendant in favour of the plaintiff on 22-7-1974 was cancelled by Ext. B2 dated 21-8-1974. The property was assigned to defendants 1 and 2 by Ext. B1 dated 17-3-1975 stating that there was no encumbrance or charge on the property. The alleged plucking of cashewnuts and jack-fruits were also denied. It was averred that if at all, the 3rd defendant alone was liable. The 3rd defendant contested the suit on the ground that Ext. A1 was executed due to misrepresentation made by the plaintiff. So, she cancelled Ext. Al'. She herself was collecting the usufructs from the date of 'melpattom' till the date of assignment to defendants 1 and 2. The plaintiff had not collected any usufructs. The suit is not maintainable.

(2.) THE trial court held that Ext. Al was validly cancelled and the plaintiff was not entitled to any relief. THE liability of the 3rd defendant was left open. On appeal by the plaintiff, the lower appellate Court held that Ext. A1 was a "lease-deed" and the cancellation was invalid. Defendants 1 and 2 were made liable to pay a sum of rs. 162. 51. Defendants 1 and 2 have come up in second appeal. As many as six questions of law have been formulated as substantial questions of law arising for consideration at the time of admission of the second appeal. THEy are as follows: " (i) Has the lower appellate Court kept in view the distinction between a lease and a licence in construing Ext. Al; (ii) Is not the lower appellate Court bound to consider the decisions which lay down the principles in deciding whether a document is a licence or a lease; (iii) Has not the lower appellate court misconstrued Ext. A1 in holding Ext. A1 creates an interest in immovable property; (iv) In view of the definite terms of Ext. Al, does Ext. A1 create an interest in immovable property? (v) Should not the lower appellate court consider whether the 3rd defendant is liable and is not the lower appellate Court wrong in holding that defendants 1 and 2, who are not parties to the contract, are liable; and (vi) Should not the lower appellate court have considered whether defendants 1 and 2 are entitled to relief under the Kerala agriculturists' Debt Relief Act 1970 and Ordinance 1 of 1977. "

(3.) IN the light of the above, I hold that the lower appellate Court was in error in holding that Ext. A1 creates a lease and so the 3rd defendant was incompetent to cancel it and by the assignment Ext. B1 the 1st defendant takes the property subject to Ext. Al. Ext. Al creates only a licence. The 3rd defendant was competent to cancel it. She did so. The 1st defendant got the assignment validly without any restriction. The judgment and decree of the lower Appellate Court are unsustainable and are set aside, and the judgment and decree of the trial court are restored.