MADHAVAN Vs. RAVI NAMBOODIRI

JUDGEMENT

(1.) This second appeal is by defendants 1 to 3 and 5 to 10 in the suit. The first court dismissed the suit which was for an injunction in the alternative for possession. But the lower appellate court has given the plaintiff a decree for possession on his paying the defendants compensation for the improvements effected by them.

(2.) The property in suit admittedly belongs to the plaintiff having been obtained by him in 1959 in the partition of his joint family. Until partition it was in the possession of one Neelakantan Nambudiri as the head of a branch of the family. This was under a maintenance arrangement of 1124 which came to an end with the partition Neelakantan Nambudiri himself died two years earlier in 1957. The land is classified as garden land. But, according to the defendants and the evidence adduced by them which has been accepted by the courts below, in the course of years since 1954 the land has been adapted for the cultivation of paddy so that it may now be regarded as "nilam" within the meaning of S.2(30) of Act I of 1964. Defendants 1 to 3 and 5 to 9 were cultivating an extensive block of paddy land adjoining the suit land on varam under Neelakantan Nambudiri from 1954 onwards, and it is said on their behalf that they are still cultivating that land. However that might be, the case set up by them regarding the portions of the suit land in their respective possession is that they were allowed by Neelakantan Nambudiri to raise paddy seedlings, sometimes also plantains, on the land which they reclaimed for the purpose, and that after water became available from the Peechi irrigation system they were also raising paddy. For this they were annually paying Neelakantan Nambudiri one para of paddy per para of seed area. This was subsequently raised to two paras. It seems to me extremely doubtful whether this plea amounts to a claim either of a tenancy proper or of a varam, in other words a deemed tenancy, within the meaning of the Act under Neelakantan Nambudiri. It seems to me more to make out a licence for the raising of paddy seedlings and plantains for a fixed fee which can scarcely attract the definition either in Clause.57 or in Clause.60 of S.2 of the Act. But, assuming that these defendants were tenants or deemed tenants under Neelakantan Nambudiri, it by no means follows that they are entitled to any fixity as against the plaintiff. For, Neelakantan Nambudiri was only a limited owner, and under S.3(1)(vi) of the Act any fixity which defendants could claim against Neelakantan Nambudiri or his branch came to an end with the determination of their limited interest as a result of the partition. There is no plea whatsoever that the arrangement which the defendants claim to have had with Neelakantan Nambudiri was continued by the plaintiff, and, that being so, it follows that, so far as the plaintiff is concerned, the defendants are neither tenants nor deemed tenants. It is true that, in their written statements, these defendants said that the plaintiff realised a half share of the profits of the paddy cultivation done by them in the year 1136. But this, even if true, does not make out either a tenancy or a varam. There is significantly no averment that the plaintiff allowed the defendants to possess and enjoy the land or that he entered into any arrangement with them for cultivating it with paddy and sharing the produce. It can well be that realisation was by way of damages for use and occupation. That apart, even with regard to this alleged realisation of a half share of the profits of 1136, there is no evidence excepting for a stray statement of the 1st defendant that this was realised through a Kariasthan of the Illom. The Kariasthan is not a witness and there is no knowing whether the alleged collection, even if true, reached the plaintiff or was on his behalf. No suggestion was made as to this collection to the plaintiff's witnesses who were examined first.

(3.) The case of the 10th defendant is no different, excepting that he claims a pankupattom arrangement with Neelakantan Nambudiri under which the land in his possession was reclaimed and cultivated with paddy and plantains. This does not make out a varam as defined by S.2(60) of the Act, and even if it did, for the reasons already stated it would be of no avail as against the plaintiff in the absence of either pleading or evidence of an arrangement with the plaintiff.