NANU NAIR Vs. KRISHNAN NAIR

JUDGEMENT

(1.) This second appeal is by the plaintiff in a suit for declaration of his possession and injunction alternatively for recovery with mesne profits, which has been concurrently dismissed by the courts below.

(2.) The plaint schedule property consists of a Paramba about 1 acres in extent with a house building standing thereon and various trees yielding and otherwise and is admittedly owned by the plaintiff. On 20.6.1109 plaintiff got Ext. I registered lease in respect of the property from his sister, the 4th defendant, reciting that it had been outstanding, under oral lease, with her from 1096 onwards and fixing a yearly pattam of Rs. 55 out of which Rs. 25 alone was made payable, the balance being allowed for the maintenance of the property. According the plaintiff he had caused Ext. 1 lease to be executed in order to prevent an attachment of the movable therein by a creditor of his and the lease deed was not intended to be nor was acted upon. In any event Ext. I was only in the nature of a lease of a building with the land appurtenant thereto so as not to create a permanent tenure. The suit was, therefore, laid for declaration that Ext. I lease was merely sham and ineffective and for injunction to restrain the 4th defendant from disturbing the plaintiffs possession, alternatively for recovery of possession on foot thereof. The 5th defendant, daughter of the 4th defendant, was impleaded as in possession under her. The 1st defendant was the plaintiffs son and the 2nd and 3rd defendants were the 1st defendants wife and daughter. They were impleaded as persons also disturbing the plaintiffs possession. But we are not concerned with either the 5th defendant or the defendants 1 to 3. The main contest was by the 4th defendant. She contended that Ext. I was real and subsisting and besides, was unquestionable at the hands of the plaintiff. The 4th defendant had further obtained permanent occupancy rights under and by virtue of the Cochin Verumpattamdars Act, VIII of 1118 and the prayer for eviction on basis of Ext. I was therefore unsustainable. The courts below concurrently found in favour of the 4th defendant on both the issues as to genuineness of Ext. I lease and its non exemption from the provisions of the Cochin Verumpattamdars Act, and accordingly dismissed the suit and hence this appeal.

(3.) Mr. N.D.P. Nambooripad learned Counsel for the plaintiff, has not questioned the finding of the courts below on the real nature of Ext. I lease. But he pressed the alternative relief in the plaint for recovery of possession, on two grounds, firstly that Ext. I lease covered by the exception under S.3(c) of the Cochin Verumpattamdars Act, VIII of 1118 and therefore no permanency of occupation attached to it, and secondly and assuming that the 4th defendant was a Verumpattamdar, the property was required by the plaintiff for his own use under S.8(1)(f) and was accordingly recoverable from the 4th defendant. Taking up the first ground, the relevant portion of S.3 runs as follows: