KUNHIYOOR MANAKKAL TAVAZHI KARNAVAN AND MANAGER NEELAKANDHAN NAMBUDRIPAD Vs. ADVOCATE MRCGKRISHNA AIYAR

JUDGEMENT

(1.) The landlord (the appellant) brought a suit to evict his tenant (the respondent) because, in the words of Section 20 (3) of the Malabar Tenancy Act, the period of the kanom had expired and no renewal had been obtained. The tenant thereupon exercised the right given to him under Section 23 (b) to file an application under Section 22 to have a renewal of the kanom. The period of the kanom had expired on the 25 April, 1926; but neither had the landlord taken action to evict the tenant nor had the tenant applied for renewal until the suit was filed in 1938. The District Munsiff before whom the suit and the renewal application were filed held that as a further period or 12 years had expired since the expiry of the original kanom in 1926, two renewal fees were necessary. He therefore dismissed the application of the tenant on the ground that the sum to be deposited by him, viz., the value of two renewals, had not been deposited. The tenant went in appeal to the Subordinate Judge, who held that it was immaterial when the period of the kanom expired, and that the termination of the kanom was the date on which the Act came into force. He therefore allowed the appeal and remanded the application for fresh disposal, giving a finding that the twelve years of renewal were to date from the coming into force of the Act in 1930. The landlord has appealed to this Court against that remand order, while the tenant has preferred a memorandum of cross-objections, contending that the kanom must be deemed to have been terminated on the date on which the application to renew was made.

(2.) Mr. Kuttikrishna Menon has raised a preliminary point that this matter must be deemed to have been decided finally by the decree in the redemption suit filed by the landlord because the tenant had not appealed against it. In the redemption suit this question of the renewal fee and the date from which it began to operate was not raised in the form of an issue as one would have expected; but in the decree it was ordered that the tenant should pay such and such a sum on a certain date and if he did not do so his suit would stand dismissed with costs. As the tenant did not pay the sum by that date, the decree was tantamount to a dismissal of the suit on the day after the date on which the tenant was ordered to pay that sum. This point, I consider, is directly covered by the Full Bench case in Panehanada Velan v. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 29 Mad. 333 (F.B.), in which there were two suits--one by the landlord and the other by the tenant--in which precisely similar questions were raised. There was a common judgment; and it was held that " the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate Court was asked to decide res judicata. The tenant's appeal in his suit if successful would have the effect of superseding the adjudication in the landlord's suit."

(3.) The learned Judges approved of the decision in Abdul Majid V/s. Jew Narain Mahto (1888) I.L.R. 16 Cal. 233, in which there were two judgments. Mr. Kuttikrishna Menon, citing the decision of King, J., in Sevadappa Goundar V/s. Narayanaswami Aiyar , contends that the principle laid down in Panchanada Velan V/s. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 29 Mad, ought not to be extended and should be confined only to those cases where the suits raised precisely the same points and where there is a common judgment. The learned Judges in Panchanada Velan V/s. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 29 Mad. 333 (F.B.)], however held that Abdul Majid V/s. Jew Narain Mahto (1888) I.L.R. 16 Cal. 233, had been rightly decided, and that that was not a case precisely similar to Panchanada Velan v, Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 39 Mad, for not only were there two judgments but the suits were not precisely similar, only the most important issue in the two suits being the same. The principle enunciated in Panchanada Velan V/s. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 39 Mad was carried a little further in Ramaswami Chetty V/s. Karuppa Chetty (1915) 29 M.L.J. 551, where there were two judgments, one of which depended, as in this case, on the decision in the other case. It is difficult to distinguish that case in principle from the present one. There was no material contest in the redemption suit other than the point that was raised in the application to renew; and that is why the decree in the redemption suit was made to depend upon the compliance of the tenant with the terms of the order passed on his application. I therefore hold that the decree in the redemption suit did not operate as res judicata and so prevent the lower appellate Court from expressing an opinion on the merits of the appeal before it.