KRISHNAN NARAYANAN Vs. SANKARAN VELAYUDHAN

JUDGEMENT

(1.) THIS is a petition for revising the appellate order of the Additional District Judge of Parur in the matter of an application for a temporary injunction made by the plaintiffs in O. S. 152 of 1957 of the District munsiff's Court of Parur. The plaint property in the said suit belongs to Pw. l, and he had given it on varam to the defendant for the Kanni crop of the Malabar year 1132. After that crop was taken he gave the property, which is a wet land for prawn fishing to the plaintiffs by a document dated 18-10-1956 which has been exhibited in the case as Ext. P. 2. The plaintiffs' case is that on 5-4-1957 Pw. 1, gave the property to them on varom by Ext. P. 1 and both before 5-4-1957 and after that date they had carried on agricultural operations necessary for raising the Kanni crop of 1133. It is alleged by them that there was an oral agreement by Pw. 1 prior to 5-4-1957 for giving the property to them on varom for the Kanni crop of 1133 and that on the strength of this agreement they had done certain agricultural operations prior to 5-4-1957 while they were in possession of the property under Ext. P. 2. Defendant was the varamdar for the Kanni crop of 1132. On 11-4-1957 the Ordinance which has subsequently been renewed by the Kerala Stay of eviction Proceedings Act 1957, (Act I of 1957) was passed. According to the plaintiffs, after this Ordinance was promulgated, the defendant wanted to obtain wrongful possession of the property and so with a view to make out that he had continued to be in possession of the property even after the Kanni crop of 1132 and the plaintiffs had not started any agricultural operations before the Ordinance he attempted to trespass upon the property on 15-4-1957. THIS attempt the plaintiffs allege was defeated because the defendant and his partisans had come to the property while they were attending to certain agricultural operation in it on the 15th. Apprehending that the defendant might again trespass upon the property and attempt to take wrongful possession of it, plaintiffs brought the present suit for an injunction to restrain him from entering upon the property and interfering with their possession and pending the disposal of the suit they also made an application for a temporary injunction for the same purpose. The defendant opposed the application for temporary injunction contending that there was no varam in favour of the plaintiffs for the Kanni crop of 1133, that even if there was a varam in favour of the plaintiffs they had not started agricultural operations for the Kanni crop of 1133 and that in any event under S. 6 (2) of Act I of 1957 he was entitled to cultivate the property for the Kanni crop of 1133 also. Before the defendant appeared and put in his objections the trial court granted an interim injunction, but after his objections were filed the trial court took evidence in the matter and ultimately dissolved the interim injunction and rejected the plaintiff's application for temporary injunction, imposing, however, two conditions on the defendant, namely (i) that he should furnish security for the value of the entire crop of the property provisionally fixed at 1000 paras of paddy valued at Rs. 2. 50 n. p. per para and (2) that he should undertake to harvest the crops only under the supervision of a commissioner to be appointed by the court. Plaintiffs took up the trial court's order in appeal to the additional District Court of Parur and the learned Additional District Judge set aside the trial court's order and allowed the injunction, imposing on the plaintiffs the same conditions which were imposed by the learned Munsiff on the defendant. THIS revision petition has been filed by the defendant to revise the appellate order of the Additional District judge.

(2.) THE evidence in the case consists of the testimony of the landlord, Pw. 1, the varamchits executed in his favour by the plaintiffs and the defendant for the years 1133 and 1132 respectively, the agreements for fishing executed by both of them, each for the season prior to the period of his varam and four letters written by the President - and the Secretary of the parur Taluk Karshaka Thozhilali Union and the Parur Taluk Committee of the communist Party of India which associations on the application of the defendant and without the consent of the plaintiffs or Pw. 1 assumed jurisdiction to decide the dispute between the rival varamdars. On the evidence, there is absolutely no room for doubting the correctness of the learned Additional district Judge's order. According to Pw. 1 his practice was to lease out the fishing right, auctioning the same, after the. Kanni crop each year and then to give the property in varam for the next kanni crop to the person who obtained the fishing right at the auction. This evidence is amply corroborated by Exts. P-3 and P-4. Ext. P-4 executed by the defendant himself, shows that he bid for and obtained the fishing right after the Kanni crop in 1131, and Ext. P3, also executed by him, shows that following the fishing agreement the property was given to him on varam for the Kanni crop of 1132. Ext. P-4 was executed on 15-10-1955 and Ext. P3 on 4-4-1956. It is admitted that after the Kanni crop of 1132 the fishing right was bid for and obtained by plaintiff 1 and that he had executed Ext. P2, fishing agreement, in favour of Pw. 1 on 18-10-1956. Under Ext. P-2 possession of the property was given to plaintiff 1. In these circumstances, the evidence of Pw. 1 that he had agreed to give the property on varom to the plaintiffs even during the fishing season and that following the said oral agreement he gave the property to them on varam under Ext. P-1 on 5-4-1957 appears to be highly probable. Pw. 1 is a very respectful person and there is no reason to reject his evidence which is in absolute conformity with the probabilities of the case. He also swears that during the fishing season and after 5-4-1957 the plaintiffs had carried on agricultural operations in the property for the Kanni crop of 1133. THE learned munsiff himself, in Para. 5 of his order, seems to accept Pw. 1's evidence that certain works have been carried on in the property by the plaintiffs. But he says that it cannot be said definitely whether these operations were for the purpose of paddy cultivation for the next season. Why the fishing contractor should attend to this work if he was not himself to cultivate the property for the Kanni crop of 1133, he has not considered. THE letters of the self-constituted authorities who assumed jurisdiction to settle the dispute between the rival varamdars themselves show that the plaintiff's case must be true. Ext. P-5 is a letter written by the President of the Parur Taluk Karshaka thozhilali Union to "sudhakara Menon, Trichur", who is Pw. 1. In that letter it is said that the defendant who was the varamdar for the previous year had filed a complaint petition before the Union that the principal complaint was that Pw. 1 had given his property on varam to the plaintiffs for the present year that the Union was satisfied that this complaint was true, that they could not allow the denial of the permanent occupancy rights of the previous varamdar and that, therefore, they were asking Pw. 1 to settle the matter amicably. It is significant that in this letter, which purports to have been made after enquires were made by the Union Officers, there is no suggestion that the new varamdar had not obtained possession of the property and had not attended to any agricultural operation for the Kanni crop of 1133. THE attempt of the Union was to assert its authority over Pw. 1 and the plaintiffs and see that the man who came to them first should be helped to get possession of the property. THE next letter Ex. P-5 (a) dated 10-5-1957 , is from the Parur Taluk Committee of the Communist Party of India to "t. Bhaskara Menon Avl. Ernakulam", who is Pw. 1's brother and tells him that a letter to " Shri Sudhakara Menon Avl. ", is being enclosed and that he should try for a settlement of the dispute. Ext. P-5 (b) is the letter to "shri. Sudhakara Menon" referred to in Ext. P-5 (a ). In this letter it is clearly stated that the new Varamdar has come up on the property for cultivation: