GURUSWAMI PILLAI Vs. VEERABHADRA THAVALKARAN

JUDGEMENT

(1.) This case has had a long history. The plaintiffs are the trustees of the Brahmapureeswaraswami Koil in the village of Pasupatikovil, and they sue the defendants, who were the temple drummer and his brother, for the delivery of a certain house and mesne profits. In consequence of the course that this case has taken, it becomes important to examine the pleadings with some care. The plaint- alleges that in 1880 the trustees permitted the 1 defendant and his two deceased elder brothers to reside in a house which was built by the former trustees of the temple on a certain site belonging to the temple for occupation by the pipers who did melam service in the temple. In return for this permission the defendant and his brothers undertook to do melam service in the temple living in the house rent free so long as they did that service, under an obligation to deliver up possession of the house in case they failed to perform the melam service or the trustees dispensed with their services. As the 1 defendant had discontinued his melam service from Chitrai, 1916, he was bound to deliver possession of the house. A notice was sent by the plaintiffs to the 1 defendant on 14 November 1916 demanding possession. The defendant replied on 13 December 1916 contending that the house did not belong to the temple. The plaint continues that in case the oral agreement set up, i. e. the agreement of 1880 is held to be invalid, the present trustees are entitled to possession as the 1 defendant has bean simply living in the house as a licensee of the prior trustees. The cause of action is said to have arisen in Chitrai 1916, when, the first defendant ceased to do his service. In the written statement the defendants admit that the ground site belongs to the temple, and they set up that, as consideration for the melam service, the trustees granted to the brother of the 1 defendant the sites in question and nanja and punja etc, pertaining to a quarter pangu (share) in the village as manyam. They refer to a registered agreement dated the 21 of July 1880. They further say that during the time of the first plaintiff as trustee, the trustees leased out the lands and paid the defendants 64 kalams of paddy every year and when the defendants demanded payment of 108 kalams of paddy due to them, they brought this suit. They further plead that the grant cannot be resumed as the defendants right has been established.

(2.) Of the issues framed only two need be referred to here, viz: 1. Wether the plaint house sites were granted to the defendants ancestors on the terms and conditions set forth in the plaint, i.e., the oral agreement? 2. Were the sites given to the defendants ancestors absolutely as contended for by the defendants?

(3.) The District Munsif found in favour of the plaintiffs. He examined the agreement of the 21 July 1880, which is Ex. I in the case, and found that it did not grant an irresumable inam to the defendants. He also found that the defendants had not been rendering their services. On appeal to the Subordinate Judge he observed that the plaintiffs gave up their rights to recover possession of the suit house and mesne profits and they only sought to recover possession of the sites. This is also apparent from the judgment of the District Munsif. The Subordinate Judge found that the oral agreement set up in the plaint was false. He then goes on to consider the terms of Ex. I and at the end of paragraph 8 of his judgment says: "I find that plaintiffs are entitled to recover possession of the suit sites in case the defendants make default in rendering the services of Periemelam and Chinnamelatn to the temple without any default on the part of the plaintiffs to act according to the terms embodied in Ex. I". The Subordinate Judge remanded the suit to the District Munsif to consider the three points set out in his judgment and framed three additional issues. The District Munsif at the re-hearing decided on the three Issues that the lands pertaining to the quarter pangu never went into the possession of the defendants and that the plaintiffs were given possession with the defendants consent. He also found that the plaintiffs paid the emoluments due to the defendants upto the time when the defendants failed to render services of Periamelam and Chinnamelam to the temple. It appears by the way, that this latter service was never performed and no complaint or question seems to arise with regard to it. The District Munsif also found that the defendants had wilfully ceased to render the services even after they had been paid. He remarks at the end of his judgment "It was sought to be contended that the house site was given as consideration for the defendants removing from Manojiapppa Chavadi and that the lands were consideration for the services. This is a new case for the first time set up at the trial". The Subordinate Judge to whom an appeal was taken remarks that the previous Subordinate Judge considered the effect of Ex. I and that the suit has been developed into one based on the agreement, Ex. I, but there are no allegations in the plaint as to how the plaintiffs were entitled under the provisions of that document to recover possession of the suit sites. He finds that the sites are not liable to be given up and that he is not bound by the observations of the First Subordinate Judge with regard to the effect of that document. He also finds that as the plaintiffs did not carry out their part of the contract, viz., to put the defendants in possession of the lands, they cannot enforce the remaining terms of the contract and that so long as the plaintiffs have not established that they have paid to the defendants the entire income from the the pangu of lands, they are not entitled to their services. As to the reasons which led to the cessation of the services by the defendants, he says he cannot come to a conclusion on the evidence before him. The points taken in second appeal are three. 1. The Second Subordinate Judge from whose judgment the second appeal is now taken, was not entitled to review the decision of the previous Subordinate Judge as to Ex. I. 2. An appeal ought to have been preferred against the remand order. 3. The inam is resumable.