NETTALIA SEQUERIA Vs. CHOVVAKARAN ORKATTERI ABDUL KHADER (MINOR)

JUDGEMENT

(1.) This is an appeal against an order of remand passed by the learned Subordinate Judge of Tellicherry in connection with an application made by a tenant who was a defendant in an ejectment suit. The application was made under Section 22 of the Malabar Tenancy Act, and the case raises a point of some importance with reference to the construction of certain provisions of that Act. The first plaintiff is the ultimate landlord or jenmi. Also he is the Karnavan of a tarwad and plaintiffs 2 to 4 are his sister's children. In 1928 the first plaintiff granted to his sister (the mother of the plaintiffs 2 to 4) what is described in the plaint as a "melcharth" but the document itself has not been marked as an exhibit in the case. In 1930 the four plaintiffs (the sister having died in the meanwhile) filed a suit in ejectment against the present appellant who was in possession from the Jenmi as a kuzhikanomdar. We are not now concerned with the merits of the ejectment suit but only with the application which the defendant filed in that suit, claiming a renewal under Section 22 of the Tenancy Act. To that application he made only plaintiffs 2 to 4 parties and not the first plaintiff (who was the Karnavan and the original landlord). That application was resisted on the ground that the paramba was required for bona fide building purposes, as contemplated in Section 20(6) of the Act. The learned District Munsiff dismissed the application holding that plaintiffs 2 to 4 were entitled to raise that question and that the paramba was in fact required for a purpose contemplated by Section 20(6).

(2.) The defendant (Petitioner) appealed, contending that plaintiffs 2 to 4 were not entitled to avail themselves of the objection under Section 20(6) by reason, of Section 40(2). The learned Subordinate Judge upheld this contention, but he was of opinion that the application for renewal should be made against the landlord, who according to him was the first plaintiff and that it was bad for not making him a party. He accordingly set aside the order of the lower Court and remanded the application to be disposed of after making the first plaintiff a party to the application.

(3.) The tenant has appealed against this direction of the learned Subordinate Judge and on his behalf it has been contended before us by Mr. Sitarama Rao that the application should have been straightaway granted, on the ground that plaintiffs 2 to 4 were precluded from relying upon Section 20(6) and that it was unnecessary to implead the first plaintiff, because after the grant of the melcharth he is really not the landlord at all. On behalf of the respondents a memo of cross-objections has been filed contending that the Subordinate Judge should have affirmed the order of the District Munsiff that it is unnecessary to implead the first plaintiff as a party to the application and that the remand is therefore uncalled for.