IKKANDAN Vs. KOCHAPPI ARANKAN

JUDGEMENT

(1.) This second apeal is by the defendant in the suit. Plaintiff brought the suit alleging that the plaint schedule property was leased to the defendant along with other items in 1118 and as per a settlement in 1123 the garden portion was surrendered and only the paddy land now described in the plaint was left with him. Contending that rent was in arrears and he was committing waste by converting the paddy land into garden plot and planting trees the plaintiff claimed eviction. It was also claimed that in case eviction was refused a permanent injunction restraining the defendant from conversion of the leasehold into a garden plot might be granted. The defendant contended that no waste as such was being committed and offered to pay the arrears. The Trial Court held that conversion of portions of the paddy land into garden plots and planting trees did not constitute waste as contemplated in the Cochin Verumpattomdars Act, VIII of 1118. Hence eviction and the prayer for injunction were refused. A decree for arrears of rent was granted. In the appeal preferred by the plaintiff the Trial Courts decree was modified and an injunction as prayed for granted, the learned Judge holding that the lessee had no right to convert the paddy land into a garden plot. On behalf of the defendant it is now contended that the lower appellate court was wrong in restraining his rights as a lessee by the issue of a permanent injunction. The relationship of landlord and tenant in the Cochin - Kanayannur Taluk where the plaint schedule property is situated is governed by the Cochin Tenancy Act, XV of 1113, and the Cochin Verumpattomdars Act, VIII of 1118. So it will not be proper to strictly follow the provisions of the Transfer of Property Act or rely upon the decisions of the Travancore High Court with regard to questions like those involved here. The lower appellate court has relied upon S.108, Cl. (o). The said clause is as follows:-

(2.) Even here what is emphasised is that the property should not be used for a purpose other than that for which it was leased and that the same is to be used as by a person of ordinary prudence. What is prudent use will depend upon the conception of parties and the localities concerned. The plaintiffs contention is that as per an arbitration the garden plot in the hands of the defendant was surrendered and the paddy land left with the defendant as a lessee under the understanding that the same will not be converted into a garden plot. Reliance is placed upon the endorsement in Ext. B by the defendant. There though there is a reference to the surrender of the garden plot and of the continuing lease being only of the paddy land there is no undertaking that no trees would be planted or any such improvement made. If there was such a specific agreement on behalf of the defendant as now alleged certainly some clause to that effect would have found a place there. Thus apart from the binding character of any such undertaking reliable evidence regarding any such restraint on the lessees right is absent here. One of the decisions relied upon by the lower appellate court is 12 Madras 320. This has been referred to in Thuppan Nambooripad v. Kunjunni Nair (13 Cochin 277: Reprint Edition page 433) and distinguished, it being pointed out that there was acquiescence on the part of the landlord in the Madras case. Though there is a reference to the knowledge of the landlord in the Cochin case also the observations are to the effect that the conversion of paddy land into a garden plot with cocoanut trees was an improvement. In Para.2 it is stated as follows:-

(3.) In Ittiravi Namboori v. Chathukutty (3 Cochin Law Journal 134) also it has been held that the conversion of paddy land into a garden plot can be an improvement. In the present case there is no evidence to show that if trees are planted as now alleged by the plaintiff the value of the property will be diminished. Both the lower Courts have held concurrently that conversion is not a waste and that is why eviction has been refused. So when such conversion is an improvement in the circumstances of this case it will not be proper to restrain the defendant by an injunction from improving the land in his hands held as a lessee. So the Trial Court was quite right in refusing the permanent injunction prayed for. Hence the appellate courts decision is reversed and the Trial Courts decree restored. The appellant is entitled to his costs in both the appellate courts.