SANKARAN KUNCHAPPAN Vs. LOUIS

JUDGEMENT

(1.) This Second Appeal has been preferred by the defendants in a suit for a permanent injunction restraining the defendants from putting up additional structures and for arrears of rent of the house site or in the alternative for compensation for use and occupation. The plaintiff claimed that the defendants were Kudikidappukars in the property, that though the first defendant agreed to pay Rs. 2 as site rent and executed a coolicharth after plaintiff got the assignment he did not comply with it and hence the suit was filed to enforce the reliefs to which the plaintiff was entitled. The defendants contended that they had been allowed to occupy a specific portion and put up a house on the understanding that they were to look after the property and see that the canal running by the side of the property was kept in proper condition. Any agreement to pay rent or liability for damages by way of compensation for use and occupation was denied. Both the lower courts upheld the plaintiffs claim for damages for use and occupation and granted the relief of injunction also. These concurrent findings are now questioned on behalf of the appellants. The case of the plaintiff is that the defendants were allowed to use the site in the property to put up a house to reside. The defendants while contending that they were given a specific plot has no case that they are lessees of the property. The rights given to them as brought out in evidence clearly go to indicate that their status is only that of Kudikidappukars, and not of any other. In S.2 of the Cochin Verumpattamdars Act, VIII of 1113, a Kudikidappukaran is defined as follows:

(2.) The defendants possession is clearly covered by the aforesaid definition. The lower courts have disbelieved the claim of the plaintiff that there was an agreement to pay rent for the use of the site. The contention of the defendants that when they were originally let in the understanding was that they were bound only to look after the canal and keep it in proper condition has not been made out. So the result is that this is a case where a house site has been allowed to be used and there is no evidence as to any agreement to pay rent or any agreement that the defendants need not pay any. That is urged on behalf of the defendants is that under such circumstances this must be considered as an instance of a Kudikidappukaran who has been permitted to have the use and occupation of the house site without an obligation to pay rent, being the second category contemplated in the definition. This plea cannot be accepted. As pointed out by the respondents counsel without an obligation to pay rent can apply only to such cases where there is evidence to the effect that when the house site was allowed to be used there was a definite agreement on the part of the landlord that the parties so allowed need not pay any rent at all. Absence of any agreement on that point will not raise any presumption of the house site being given without any obligation to pay rent. Then the question is whether under such circumstances the plaintiff can claim damages for use and occupation. The nature of such claims is rendered to in Kunhikutty Warasyar v. Antoni (31 Cochin 11) relied upon on behalf of the respondent. There in para 6, it is observed as follows:-

(3.) Here the defendants were specifically allowed to use the house site for putting up a house for purpose of residing. So it is clear that when there is no proof of such permission being granted on the specific understanding that they were entitled to free use liability for damages for use and occupation cannot be denied by such parties. That when there is no specific stipulation regarding liability to pay rent or non liability to pay rent a person who uses anothers property with his permission is liable to pay reasonable rent by way of damages for use and occupation has been laid down in Sirkar v. Chattanatha Karayalar (13 TLT 659) referred to on behalf of the respondent. So the lower courts were quite right in upholding the plaintiffs claim for damages for use and occupation. The injunction is intended only to prevent further encroachments into the land of the plaintiff by the defendants. So there is no ground to interfere with the lower courts order with regard to that also. Hence it follows that there is no merit in this second appeal and the same is dismissed with costs.