HRISHIKESAN NAMBURIPAD Vs. MADHAVAN

JUDGEMENT

(1.) THIS appeal is by the plaintiff in a suit for recovery of jenmikaram. The claim is for the years 1133 and 1134 M. E. at 130 parahs of paddy and Rs. 2. 19 p. per annum, with interest at 6% per annum and it is not in challenge; but the commutation claimed at Rs. 1. 75 p. per parah of paddy is contested. The plaintiff has also claimed reimbursement of tax he paid for the property for the year 1132 M. E. The 1st defendant claimed it to be covered by the stay of Act I of 1957. The Courts below concurred to reduce commutation to rs. 1. 60 p. per parah and interest on arrears to 5% per annum. The claim of Rs. 10. 41 p. for tax paid was dismissed by the Munsiff but was allowed to be recovered in 17 equal half-yearly instalments by the Subordinate Judge. The plaintiff has come up in second appeal.

(2.) AS regards commutation, the relevant notification is no. E4-16727/56/rd dated 22-11-1957 published in the Kerala Gazette dated 3rd december 1957 reads: "in exercise of the powers conferred by S. 49 of the kanom Tenancy Act, 1955 (XXIV of 1955) and after having considered the report of the Committee appointed under R. 7 of the Commutation Rules issued under the said Act the Government of Kerala hereby fix the following rates for the commutation into money of paddy and other commodities for the purposes of the said Act for the whole area to which the said Act is applicable. Table:#1 It. . . . . . . . . . . . . The Report of the Commutation Committee, appended to the aforesaid notification, reads: ". . . . It was decided that the Committee might tour the following areas and take evidence of prices for the relevant period from all the interested parties: 1. Chittur 2. Trichur 3. Chelakkara 4. Kunnamkulam 5. Irinjalakuda 6. Cochin 7. Cranganore . . . . It may be recalled here that the unit for which the price is quoted namely the para, is not of uniform capacity either with all the jenmies or with all the tenants or with all the merchants. The standard para measures 480 os. while paras of different capacities are also not uncommon. The paras in the use of Jenmies are generally of the capacity of either above or below that of the standard para. All these reasons have contributed to the variations in the prices given by the several witnesses in the answers sent by them. . . . The prices which prevailed during the last three years in the important centres as recorded in evidence are enumerated below for easy reference. (The prices given for the different places for different periods of the years 1130 to 1132 varied from Re. 1-6-0 to 2-8-0 per parah ). . . . These figures give a district average of Rs. 1-12-3, or 1-12-0 to adopt a round figure, per para, for the whole year. " It is obvious from the Report of the Committee - the collector of Trichur and four other gentlemen of the district - that the commutation fixed was for the standard parah current in the district of Trichur (which in 1957 practically covered the area of operation of the Kanam Tenancy act, XXIV of 1955 ). The Weights and Measures Act then current in the area was cochin Act LXIII of 1112, S. 3 whereof enacted: "the primary standard for measures of capacity shall be called an "edangali" and shall to a measure of metal certified to be capable of holding 44 ounces of water. " A parah being equivalent to 10 edangalis, the Cochin standard parah was 440 ounces in capacity. True since 1951, the Travancore standard parah was also given recognition in the District, but it did not replace the Cochin standard parah; for the relevant notification, Fd-7-2016/50/fd. D dated 16-1-1951 published in the Gazette dated 23rd January 1951), read only thus: "in exercise of the powers conferred on them by S. 5 of the Cochin Weights and Measures Act, 1112 (Act LXIII of 1112) as continued in force by the Art. 372 (1) of the Constitution of India, Government are pleased to declare the measures mentioned in the Annexure to this Notification to be authorised measures under the said Act. ANNEXURE 1. The Travancore Standard para of 800 cubic inches capacity. It is conceded that, in terms of ounce, the Travancore standard parah measured 461. 6 ounces only. The reference in the Report of the committee to the standard parah measuring 480 ounces agrees with neither the cochin standard parah nor the Travancore one. It must therefore be an obvious clerical mistake. The standard parah mentioned in the commutation notification of 3rd December 1957 - as the Report of the Committee clarified - referred to the Cochin standard parah. It is conceded that the jenmikaram of the suit properties is settled as per Ext. P2 dated 31st October 1957 in terms of the cochin standard parah. It is pertinent to note that in the subsequent notification on jenmikaram commutation, published in the Gazette of 5th May 1964, the rate is given expressly for the "cochin standard parah (440 ounces)". The plaintiff's claim for commutation has to be found right.

(3.) DEFENDANTS 2 to 9 have remained ex parte. At the instance of the 1st defendant the Munsiff found them to have no interest in the properties concerned and therefore held them to be not necessary parties, The subordinate Judge has held them to be neither necessary nor proper parties. As defendants 2 to 9 did not challenge their impleading in the suit, that finding is unnecessary and unwarranted. It is discharged so that the declaration of their non-interest in the suit properties may bind them.