SAINAVA UMMA Vs. KUNHAMMAD

JUDGEMENT

(1.) THE order passed by the District Munsiff at thaliparamba in O. P. 12/1955 has given rise to this revision petition. THE jenmom right of a paramba, 37 cents in extent and which is described in that petition, belongs to the thavazhi of the counter-petitioners. This property has been demised on kanam as early as in the year 1924. THE rights of the original tenant were taken assignment of by the petitioner under a registered document dated 29 21932 and ever since that time he has been in possession of the property as a kuzhikanam tenant. According to him he has put up a residential building in this property and he is residing therein and that the entire 37 cents of property is necessary for his convenient residence in the building put up by him. It is on these allegations that he filed O. P. No. 12 of 1955 under s. 34 of the Malabar Tenancy Act (Act XIV of 1930, as amended by Act XXXI of 1951 and Act VII of 1954) praying for an order compelling the respondents to sell their jenmom right over the property to him at the current market price. THE respondents resisted the petition and contended that the petitioner is not the holder of a kudiyiruppu and that he is not entitled to claim the relief contemplated by S. 34 of the Malabar Tenancy Act. THEy further contended that there was no residential building on this particular property at any time, that neither the petitioner nor anybody else has ever resided in this property, that he is residing in a building situated in a neighbouring compound belonging to him, that he has started construction of a building in the property in question and that the said building being in an incomplete condition, the petitioner has not commenced his residence therein. On a due consideration of the evidence on record, the learned District Munsiff found that originally there was no building in the property, that the petitioner has never resided in this property, that he is residing in his building in an adjoining property belonging to him and that the petitioner has only started construction of a new building in the property in his possession as a kanam tenant and that it has not reached a habitable condition and as such nobody has commenced residence in that unfurnished building. In spite of these findings, the learned Munsiff held that the petitioner is entitled to the benefits conferred by S. 34 of the malabar Tenancy Act and accordingly passed an order declaring his right to get a sale of the jenmom right of the property from the respondents. In the present revision petition filed by the respondents, they have challenged the legality and the sustainability of that order.

(2.) THE findings recorded by the learned Munsiff on the relevant questions of fact are not open to any objection and they are also fully supported by the evidence on record. A commissioner was deputed to inspect the property and to report about its condition Ext. C1 is the report submitted by him and it is clearly stated therein that the new building which was in the course of construction was seen to be in an unfurnished condition and that there was no sign of anybody having resided therein. THE commissioner has also stated that he found the petitioner residing in another house in an adjoining compound. THE petitioner himself had to admit this fact in his cross-examination. His story that there was an old building in the kanam property and that it was demolished by him about 3 years prior to the filing of this petition was rightly rejected as false by the learned Munsiff. He also repelled the petitioner's contention that he will be entitled to claim the benefits of S. 34 even in the absence of any residential building in the property in question. However, the learned Munsiff has taken the view that "it would be sufficient for the tenant to claim the benefits of S. 34 if he establishes that the house put up is one fit for residence although not yet already occupied". This view is clearly erroneous and it does not gain any support from S. 34.

(3.) SO far as the present case is concerned, even the elementary requirement of the existence of a kudiyiruppu is not satisfied in respect of the property claimed by the petitioner-tenant. There has never been a residential building on this property. He has only started construction of a building just about the time of filing the petition under S. 34. At the time of the petition that building was in an unfurnished condition and nobody had begun to use it as a residential building. Thus it cannot be said that the tenant has been in occupation of a kudiyiruppu, not to speak of such occupation for a continuous period of 10 years as contemplated by S. 34. It follows, therefore, that he is not entitled to claim the benefit conferred by that section and the learned Munsiff acted illegally and against the provisions of that section in passing an order in favour of the tenant.