KRISHNAN Vs. MAMMU

JUDGEMENT

(1.) This is an application invoking the jurisdiction of the Court under S.115, Civil Procedure Code and Art.227 of the Constitution, to quash the order the learned Subordinate Judge of Tellicherry passed on 21-6-1956 in C. M. A. No. 695 of 1953 on his file. By the said order the learned Subordinate Judge set aside the decision of the Rent Court, Badagara, dismissing F.R.P. No. 133 of 1954-55 and remitted the tenants application for fixation of fair rent of a holding back to that court for fresh enquiry and disposal. The holding consists of 20 cents of garden land and it would appear that it first went into the possession of the tenant over 50 years prior to the date of the application. The tenure of the holding is kanom. The Rent Court found that there was no sufficient or satisfactory evidence to decide which among the trees standing on the property now, belong to the land lord and which to the tenant. The learned Subordinate Judge held that was a very flimsy ground to dismiss an application for fixation of fair rent and that it was the duty of the Rent Court to fix a fair rent on the materials placed before it by the parties. Accordingly the order of the Rent Court was set aside and the application was remitted back to ascertain the trees owned respectively by the landlordand the tenant and to fix the fair rent accordingly. The present application by the landlord seeks to have the said order annulled and the Rent Courts order dismissing the application restored.

(2.) Mr. V. Balakrishnan Eradi, learned counsel for the petitioner, stated that he was pressing only one point before us namely, the jurisdiction of the Rent Court to decide the question of the title to the trees claimed respectively by the landlordand the tenant. Two other points are also mentioned in the application and they are (1) that the provisions of the Malabar Tenancy Act for fixation of fair rent did not apply to kanams and (11) that since twelve years had not elapsed after the last demise in 1944, the application before the Rent Court was not maintainable. No mention was made in the argument about the latter point, but with respect to the former it was stated that in view of the amendment to S.16 of the Malabar Tenancy Act, 1929 (Act XIV of 1930) by Act XXII of 1956 the point had become unavailable to the applicant. The amending Act inter alia made the provisions to fix fair rent expressly applicable to kanam tenues as well.

(3.) Learned counsel for the petitioner depended upon S.15(2) of the Malabar Tenancy Act, 1929 (Madras Act XIV of 1930) as amended by Act VII of 1954 to contend that the Rent Court had no jurisdiction to decide a question of title. The Sub-section reads:-