PARAMESWARAN NAMBOOTHIRIPAD Vs. VARIATHU

JUDGEMENT

(1.) The plaintiff in O.S. No. 128 of 1120 on the file of the District Judge of Trichur is the appellant. The plaint properties of the Malloor Devaswom were outstanding on a Kanom of the year 1081 with one Govinda Adigal. On a Melcharth executed in favour of the first defendant on 3.11.1100 (Ext. VIII) the properties were redeemed and reduced to the first defendants possession. The plaintiff who has succeeded to the rights of the Devaswom for collecting the Michavaram which has fallen into arrears and for redemption under the terms of Ext. 8 mortgage of 12.10.1120 has brought the suit for recovery of the arrears and for redemption of the mortgage. The second defendant owns a half share in the tenancy rights of the first defendant and is sought to be made liable along with the first defendant. He denied the liability for Michavaram on the ground that the first defendant was in exclusive possession. The fifth defendant was impleaded as a person in possession of some items but he set up independent title and claimed exoneration from the plaint claim. The lower Court granted a decree for arrears as claimed in the plaint against defendants 1 and 2 except for a small portion of one hundred and seventy paras of parddy forming part of the Michavaram for the year 1118, refused redemption and left open the question of the fifth defendants rights. Against this decree the plaintiff has brought this appeal in which he raises the question of redemption and the disallowed portion of the Michavaram due for the year 1118.

(2.) On the question of the redeemability of the tenure the learned Counsel for the appellant conceded before us that it was incumbent on this Court to stay its hands by reason of the provisions contained in S. 3 of the Royal Proclamation VI of 1124 of Cochin. That Section is as follows: Notwithstanding anything contained in the Cochin Tenancy Act XV of 1113, no suit for the redemption of the Kanom falling within the meaning of the term 'Kanom as defined in the said Act, created on or after the 9th day of Thulam 1090 shall be maintainable in OUR Court and all suits, appeals, revisions, reviews and proceedings on execution of a decree for the redemption of such Kanoms shall be stayed by OUR Courts in so far only as they relate to the relief for redemption:

(3.) It is one of the terms of the demise that if, in any one year, any part of the land were to lie fallow the tenant would be entitled to a rebate of the proportionate Michavaram chargeable on them. The amount for each item is also separately specified. Accordingly if the defendants case is true that items 3 to 5 were not cultivated in 1118 his claim for rebate to the extent of one hundred and seventy parahs of paddy should be upheld. The lower Court has found the defendants case to be true. On hearing the evidence in the case we are not inclined to differ from the conclusions of the lower Court. The plaintiff himself has admitted the best part of the defendants case as true for, according to his own witness PW 2, the lands were inundated by floods in 1118 and cultivation in the ordinary course could not be performed that year. He would, however, try to get over the difficulty by stating that the lands were cultivated with Kuttadan crops, a cultivation which can be performed even when the land is under floods. There is no evidence however worth the name that the defendant raised such crops so as to render him liable for at least a part of the crops. The learned Counsel makes much of an omission made by the lower Court which did not take the trouble to discuss the evidence of the defence witness or record his conclusions as to their credibility. This seems to us to be a bare omission which does not affect the case on its merits. The lower Court has disbelieved the plaintiffs evidence and disallowed his claim for the reason that the defendant was unable to cultivate the lands on account of the floods. There is no reliable evidence in support of the plaintiffs story about the Kuttadan cultivation. We therefore confirm this part of the lower Courts decree.