SAVITHRI AMMA Vs. NANI AMMA

JUDGEMENT

(1.) THE facts of the case are thus: THE 1st defendant had leased the property to the plaintiffs as per Ext. Al dated March 21, 1951. On January 25, 1955 , the tenants surrendered the holding to the landlord as per the registered release deed (Ozhimuri) Ext. A2 after settling all accounts till date. On March 19, 1955 , the 1st defendant mortgaged the property with possession to defendants 2 and 3. On January 25,1956 , plaintiffs instituted this suit for recovery of the property with mesne profits under S. 24 of the Malabar Tenancy Act on the ground that the land was surrendered to the 1st defendant for her own cultivation but she had alienated it. Defendants 1 to 3 contested the suit stating that S. 24 of the Malabar Tenancy Act had no application to a voluntary surrender by the tenant. THE 1st defendant having died during trial defendants 4 to 9 have been impleaded as her legal representatives.

(2.) COUNSEL for plaintiffs-respondents concedes that only the sub-section (1) of S. 24 of the Malabar Tenancy Act, 1929, as amended in 1954, is relevant to the claim in this suit. It reads thus: "in any case in which eviction has been obtained on the ground specified in clause (5) of S. 23 subject to the provisions of S. 41, if in any one of the six agricultural years following such eviction, the landlord, who has obtained such eviction fails without reasonable excuse to use the major portion of the lands, for the purpose for which such eviction was obtained, or transfers any of the lands to any person on any kind of lease or mortgage with possession or on kanam, kanam-kuzhikanam, kuzhikanam or verumpattam, the cultivating verumpattamdar shall be entitled to sue for the restoration to him of the possession of all the lands from which he was evicted and to hold them with all the rights and subject to all the liabilities of a cultivating verumpattamdar. " Obviously this provision applies only to cases "in which eviction has been obtained. "

(3.) COUNSEL for plaintiffs-respondents pressed courageously that the surrender under Ext. A2 was not a voluntary surrender but was one made under threat of a suit for eviction and therefore it was tantamount to an eviction by the landlord. This contention is based on a lawyer's notice, Ext. A3, issued on behalf of the 1st defendant on the 10th march 1954, demanding surrender of the property before the next Meenam 30th (which corresponded to 12th April 1954) on threat of a suit for recovery immediately after that date. There is no evidence in this case to show that the notice reached the plaintiffs. Admittedly, no surrender was made as demanded therein. On the other hand, Ext. A2, the deed of release, shows that, after date of that notice, the plaintiffs had cultivated the land and had paid the entire rent for 1129 and 1130 M. E. inclusive of the Makaram crop of the latter year. That deed shows further that even before its date a part of the rent for 1130 m. E. (which commences on September 17,1954) had been paid by plaintiffs and accepted by the 1st defendant. It then follows that that notice to quit, if it had reached the plaintiffs, had been given the go-by by both the parties and that the plaintiffs continued, with the assent of the 1st defendant, to enjoy the land as lessees ignoring Ext. A3. The deed of release, Ext. A2, executed on january 25, 1955, makes no reference at all to the notice of 10th March 1954. No reference to that notice has been made even in the plaint. There is thus no case to the plaintiffs that the surrender under Ext. A2 was a consequence of the notice Ext. A3. On the other hand, the recital in Ext. A2 is. This shows that the surrender was a voluntary act on the part of the plaintiffs made on a request of the 1st defendant and that no element of force or compulsion was involved in it. The surrender as such is not impugned in the pleadings. The fact that there is no allegation in the plaint that the surrender was affected by any compulsion shows that the present contention is suggested only in the ingenuity of counsel who found the mainstay had on the dictum in Saidalavi Thangal v. Mohideen had collapsed. Ingenuity of counsel cannot do duty for a pleading of fact that has necessarily to be made by the party concerned but has not been made at any time during the last ten years of pendency of this suit in the Courts below and here.