DAMODARAN ACHARI Vs. MATHAI JOHN

JUDGEMENT

(1.) Plaint item 1 is a larger area belonging to plaintiffs. Item 2 is 5 cents out of item I. In 1123 item 2 was leased out to one Sreedharan Achari for conducting a motor workshop after constructing a shed. He did so. There is no dispute that if he continued in possession he would have been entitled to protection under S.166 of the Kerala Land Reforms Act (for short 'the Act').

(2.) Against Sreedharan Achari first plaintiff filed OS 311 of 1124 for eviction and other reliefs. That suit was compromised. Ext. A5 is the compromise decree. The main question for consideration is whether the compromise which resulted in Ext. AS decree operates as express or implied surrender under S.111(e) or (f) of the Transfer of Property Act and if so whether the defendant is in possession under a new lease arrangement of the land and building which is not covered by S.106 of the Act. Claim is under that provision.

(3.) In Ext. A5 the 5 cents of land was scheduled as item 1 and the shed as item 2. There is no provision in Ext. A5 for surrender of the land or shed to the plaintiffs. Admittedly there was no express surrender and the plaintiff did not get possession also. Portion of the arrears of rent was paid by Sreedharan Achari. It was agreed that he should surrender the land to his two brothers Govindan and Madhavan and they should execute a lease deed to the first plaintiff for an enhanced rent of Rs. 10 per month. Sreedharan Achari surrendered the land and building to his brothers. Though it is alleged by the plaintiffs that Govindan and Madhavan executed lease deed it was not produced. Any bow it is not disputed that they paid rent to the plaintiffs and continued in possession.