MANNICHEENNTAVITA CHERIA MAMMU Vs. KATAVATH TEYYIL PAYANKAVIL SEYINA

JUDGEMENT

(1.) This is a suit from North Malabar and it is concerned with a Malabar tenancy. The land is jenm property and in 1907 it was demised on kanom tenure to the predecessors-in-title of defendants 1 and 2. According to the custom of the country that tenancy expired in 1919 but the kanomdars did not apply for renewal of the term. Since then therefore they have been holding land on yearly tenancy. On 5 September 1933, the jenmi granted to the present plain, tiff what is called a melcherth. A melcherth as defined in the Malabar Tenancy Act, 14 of 1930, means the transfer by the landlord of part of his interest in any land held by his tenant by which the transferee is entitled to evict such tenant.

(2.) The jenmi's title to evict accrues under Section 20(3) of the Act, namely on the ground that the period of the kanom tenancy has expired and no renewal has been obtained. This suit, the subject of the present appeal, was to evict defendants 1 and 2. The learned District Munsif of Badagara who tried it in the first instance decreed it in favour of the plaintiff melcherthdar; but on appeal the learned District Judge dismissed the suit. The ground on which the learned District Judge dismissed the suit arises out of the fact that there had been a previous melcherth. In 1922 the then jenmi gave a melcherth to defendant 7. Defendant 7 filed a suit and obtained a decree on that melcherth on 27 September 1923. By the terms of that decree, Ex. 7, defendant 7 had, as happens in most cases, to repay not only the kanartham, a mortgage amount, to the kanomdars but also had to pay to them the sum decreed as the value of improvements.

(3.) Defendant 7, however, did not do any of these things. He suffered his decree to lapse by doing nothing to execute it. At the time of the second melcherth in favour of the present plaintiff that decree had become inoperative. At first sight therefore, it appears that there was nothing to prevent the jenmi or his assignee, by way of melcherth, from exercising the right of eviction. The learned District Judge, however, arrived at the conclusion, that he could not do so. His reasoning is as follows : There is a decision of the Judicial Committee of the Privy Council Raghunath Singh V/s. Hansraj Kunwar , which lays down that a suit by a mortgagor to redeem a mortgage will lie even though a previous suit by the same plaintiff for the same relief had been dismissed, provided that there was no provision in the decree in the previous suit debarring the mortgagor from his right to redeem the property.