TRAVANCORE DEVASWOM BOARD Vs. UZHITHIRARU UZHITHIRARU

JUDGEMENT

(1.) THIS appeal is by the 5th defendant, the Travancore devaswom Board, against the judgment and decree in O. S. No. 6 of 1951 on the file of the District Court of Mavelikara, whereby the plaintiff, Vanjipuzha chief obtained declaration inter alia that the property scheduled to the plaint appertained to his Edavagai and not to the Trikkannapurathu Devaswom, represented by the appellant Board.

(2.) THE suit property is a plot of garden land 1 acre 20 cents in extent and bearing S. No. 137/2 of Pandanattu Pakuthy, Thiruvella taluk, and known as Vadyarmatathil Purayidom. It was demised along with other items on Kanom under Ext. A dated 7. 9. 1056 by the Vanjipuzha Matom in favour of thommi Varki, the ancestor of defendants 1 to 3. Ext. B is the Ozhugu form prepared in connection with the settlement and it mentioned in Vanjipuzha pandarathil to be the registered holder according to the Ozhugu of 1012 and the ayakattu of the same year, but went on to describe the tenure of the property as "trikkannapurathu THEvarvaka THEttom". In the patta enquiry, Varki oommen the son of Thommi Varki was confronted by the sellement authorities with the possible existence of the ownership of the property in the Devaswom as following from the above description of the tenure, but he refused to take derivative title from the Devaswom and insisted on taking Patta as Kanom tenant under Ext. A and Patta was accordingly issued in his favour on 2. 10. 1080 in respect of the plaint and other properties. See copy of Ext. D settlement enquiry register. In or about 1110, however, the Trikkannapuram Devaswom which had by then been assumed by the Travancore Government, applied for and obtained settlement of jenmikaram in their favour in respect of the plaint property by Ext. II decision of 23. 8. 1110. THE defendants 1 to 3, who were in possession of the plaint property as heirs of Thommi Varki, took advantage of this settlement and failed to pay the Vanjipuzha Matom its due under Ext. A Kanom. THE Matom therefore filed O. S. No. 8 of 1118 on the file of the Changanacherry Munsiff's Court against the tenants for declaration of title and for recovery of jenmikaram as herein. But because the Thrikkannapurathu devaswom was not also impleaded as directed, the court dismissed the suit by ext. E judgment dated 19. 4. 1124 corresponding to 4. 12. 1948 but without prejudice to the plaintiff's right to file fresh suit in proper form and hence this suit, which was laid on 25. 1. 1951. THE plaint averred that cause of action for the suit arose only in 1946 when, apparently during the course of Ext. E suit, the plaintiff got to know of Ext. II Jenmikaram Settlement decision in favour of the Devaswom. THE 4th defendant was impleaded as person in possession under defendants 1 to 3. THE suit was contested by the defendants 2 and 4 and also by the 5th defendant, mainly on the question of title and limitation, but the pleas were repelled by the court below and the suit was decreed in terms of the plaint subject only to a small reduction in the rate of the jenmikaram due. Hence this appeal by the 5th defendant as above said.

(3.) LEARNED Counsel finally argued that Ext. A did not in fact evidence a Kanom and therefore the question of Jenmikaram Settlement could not arise. But it seems to us that this argument is not available to the 5th defendant. The plaintiff's right as against his tenants was settled by the court below as on the basis of a Kanom right and the tenants have acquiesced. So far as the 5th defendant is concerned, the question is only of rival ownership and that, we have found, amounts to nothing. Even otherwise, there is no reason to say that Ext. A is not in the nature of a real kanom as found by the court below.