CHALADOM THOLAN Vs. KAKKATH KUNHAMBU

JUDGEMENT

(1.) THE petitioners are agricultural tenants of some lands for paddy cultivation and the respondent is a subsequent lessee under the landlord of the right to dig up and take shells from the holding without causing any detriment to the use of the land for agricultural purposes by the tenants. It is found that the agricultural tenants dug up a large quantity of shells and converted them to their own use. But they have not alleged or proved any local custom entitling them to do so Tucker V/s. Linger L.R. 8 A.C. 508. Whether the tenant was or was not justified in digging up shells for cultivating the land properly and in a husband-like manner, the property in the shells is not in him, but in the landlord, or rather the plaintiff, the respondent, the assignee of the landlord Tucker V/s. Linger L.R. 8 A.C. 508; Elwes V/s. Briggs Gas Coy. 33 Ch. D. 562. In the absence of a local custom the defendants had not a right to convert the shells, which they dug up, to their own use. Section 43, Civil Procedure Code, is in our opinion no bar to any portion of the claim made in this suit, for it is admitted that even such portion was on the holding where it was stored up at the date of the former suit for injunction, but was removed and converted by the defendants to their own use only subsequent to the former suit.

(2.) THE revision petition therefore fails and is dismissed with costs.