POLPAKARA MANAKKAL VIROOPAKSHAN NAMBUDRIPAD Vs. PULIPRE TARWAD KARNAVAN

JUDGEMENT

(1.) This case has been posted before this Bench in consequence of a contention raised on behalf of the appellant that the decision of the Full Bench In Vedapuratti V/s. Vallabha Valiya Raja (1902) 25 Mad 300 should not be followed after the decision of the Privy Council in Raghunath Singh V/s. Hansraj Kunwar . The second appeal arises out of a suit instituted by a jenmi for redemption of properties in the possession of the Kanomdar. Various objections were raised, of which it is necessary to refer only to those raised by issues 1 and 3.

(2.) Issue 3 was framed with reference to what happened in O.S. No. 670 of 1923 on the file of the Ponani Munsif's Court. That suit was instituted by the assignee of a melcharthdar, who is defendant 17 in the present suit. A decree for possession was passed in that suit conditional on payment of a certain sum of money for compensation for the improvements effected by the tenant. The decree-holder, however, did not care to deposit the amount and take possession. Some months after the date of the decree, he sent a registered notice to the jenmi, which has been marked Ex. 6 in the present case, wherein he stated that the suit had been instituted by him really at the instance of the jenmi and he accordingly called upon the jenmi to take steps to deposit the compensation amount and recover possession. We are not in a position if and how far the allegations in Ex. 6 are true. It is however in evidence that the jenmi made two or three applications for extension of time to deposit the compensation amount, as he was under the impression that if he did not do so, his right might once for all be extinguished. On two occasions extension seems to have been granted, but on the third occasion his application for further extension of time was rejected by order dated 7 September 1925. No reasons have been stated for the rejection. It has been contended in the Courts below and before us, on behalf of the Kanomdars, that these proceedings taken in O.S. No. 670 of 1923 operate as a bar to the present suit on two grounds: (1) on the general principles laid down by a Full Bench of this Court in Vedapuratti V/s. Vallabha Valiya Raja (1902) 25 Mad 300 and (2) in view of the special provisions in the Malabar Compensation for Tenants Improvements Act.

(3.) It has not been disputed that in the ordinary course the jenmi will not be precluded from instituting a suit merely because he was one of the defendants in a former suit instituted by the Melkanomdar for redemption of the Kanom. The Courts below recognize that the decisions in Raman Namboodri V/s. Achutha Pisharodi (1912) 35 Mad 42 and Veerappudayam V/s. Muthu Karuppan Thevan , are against any such contention. But it has been argued that because the present plaintiff applied to the Court in O.S. No. 670 of 1923 for extension of time to pay the money and extension was granted on two occasions, he must be held to have put himself in the position of the plaintiff in that suit and therefore to be governed by the principle laid down in Mayan Kutti V/s. Kunhammad AIR 1918 Mad 370 and that if he had allowed his remedy by way of execution to become barred, he would not be entitled to bring a second suit. The decision in Mayan Kutti V/s. Kunhammad AIR 1918 Mad 370 was based upon the principle of Vedapuratti V/s. Vallabha Valiya Raja (1902) 25 Mad 300 and on that ground dissented from the earlier decision in Chowakkaran Keloth V/s. Karuvalote Parkum AIR 1916 Mad 975. We are unable to agree with the contention that merely because the jenmi applied for extension of time in O.S. No. 670 of 1923, he must be precluded from maintaining a second suit. It does not appear from the record that his right to execute the decree in O.S. No. 670 of 1923 was adjudicated upon by the Court. The mere fact that he expected that if he deposited the money he might be able to take possession will not by itself suffice to create in him a disability which would not otherwise arise under the law. Nor do we think that the statements made in Ex. 6 by the plaintiff in O.S. No. 670 of 1923 can operate as a legal assignment to the jenmi of the decree obtained by the plaintiff in O.S. No. 670 of 1923. It has not been contended and Ex. 6 cannot be regarded as evidence that the melcharth itself was a benami transaction and that the jenmi was in substance and truth the plaintiff in the former litigation.