KOCHAYYAPPAN RAMAN Vs. UDAYAN NARAYANAN NAMBOODIRIPAD AND OTHERS

JUDGEMENT

(1.) THE first two of the three appeals herein are against the same appellate judgment and decree on the trial side, in O.S. No. 921 of 1123, on the file of the District Munsiff's Court, Shertallai, and are filed by the tenth defendant and the plaintiffs respectively.

(2.) The third appeal arises from an appellate order in execution of the decree in the case as regards delivery. The suit, O.S. No. 921 of 1123, was for recovery of the plaint item with arrears of rent. Mathoo Varkey was the original tenant under Ex. C lease dated 28 -8 -1108. His rights were sold in court auction and purchased by the defendants 3 to 5. The tenth defendant had taken sub -lease of portion of plaint item 1 from Mathoo Varkey and had besides, constructed thereon the chapra or factory building, viz., item 2 of the plaint schedule, for the manufacture of coir mattings. The suit was contested on various grounds by the defendants, but it was ultimately decreed in favor of the plaintiff by both the courts below subject to payment of more or less amounts towards value of improvements. We are concerned in the first two appeals mostly with the quantum of improvement value due to the defendants 3 and 10. We will now take up the appeals one by one. S.A. No. 735 of 1955 : The question here is whether under the general provision contained in section 4 of the Holdings (Stay of Execution Proceedings) Act VIII of 1950, the plaintiff is not entitled to recover possession in execution of decree, as held by the lower appellate court, over -ruling the executing court in the matter. The plaintiffs had relied before the Munsiff on the two grounds mentioned in proviso to section 4, viz.; default in payment of rent and willful waste, and thirdly that the land was owned by Government within the meaning of section 3(a) of the Act and therefore the Act did not apply at all. The first two grounds were found against by the Munsiff. The Munsiff, however, found in favor of the plaintiff on the third ground, because, according to the court, the land in question belonged to the Shertallai Devaswom and it was given to the first plaintiff's illom in consideration of their services as than tries in temple 'and section 2 of the Act VIII of 1950 enacted that the Ordinance shall not apply to lands owned by government or by devaswoms managed by the Devaswom Board'. This reference to section 2 of Act VIII of 1950 was obviously wrong. For the relevant section is section 3(a) of the Act which refers to the matter and that restricts the exemption, to lands owned by government only. The learned Dt. Judge on appeal the defendants, concurred with the Munsiff in respect of the grounds under the proviso to section 4 but differed from him in the applications of section on 3(a). For Government Land as defined in section 3 of the Land Conservancy Act exempted Service Inam lands and the land in question was without doubt Tantra Viruthi Service Inam. Mr. K.P. Abraham, learned counsel for the plaintiffs, says that that this Tantra Viruthi tenure is brought by the compiler of the Land Revenue Manual under the category of Pandaravagai tenures and therefore the ultimate ownership of the land rested with Government. Accord to the learned counsel, the fact that the Devaswom was subsequently handed over by Government under and by virtue of section 3 of the Hindu Religious Institutions Act XV of 1950, in favor of the Travancore Devaswom Board, would not militate against the conclusion that the land was still Government land within the meaning of section 3(a) of Act VIII of 1950 and he drew our attention to the passage in Narayanan Nambooripad v. Varki (16 T.L.J. 44 FB).where the nature of this very land came up for consideration before the Travancore High Court in connection with a land acquisition case. There are no doubt, certain general observations of the kind but they seem to be of no significance, when the ozhuku of the property is itself referred to in other portion of the judgement, as describing the property as the 'Devaswam Vaka' which means that the land is Devaswom and not Sirkar land. Section 28(3) of the Hindu Religious Institutions Act makes it also clear that whatever may be the original tenure of the service inam lands, it is the Devaswom Board that has the power to resume such lands. It follows there that the land concerned is not exempted from the operation of Act. VIII of 1950. The general provision in section 4 of the Act consequently applies and execution by recovery under the decree cannot be had.