(CHALIKONDI) KUNHAMMAD Vs. ETAKARATI AMMAD

JUDGEMENT

(1.) The plaintiff in the lower Court is the petitioner and the only point pressed on his behalf is that he is entitled to a refund of so much of the manusham as is proportionate to the period of the kanom granted by Ex. A, the enjoyment of which he was deprived of by the decree in suit No 250 of 1925 on the file of the Additional District Munsif of Badagara. Manusham has been held to be the consideration given by the lessee for the full term of the kanom. The right of the lessee to a refund of the proportionate amount of the manusham for the period for which the lessee was deprived of possession has been recognized by Madhavan Nair, J. in C.R.P. No. 348 of 1926, following the decision of Oldfield and Venkatasubba Rao, JJ., in S. A. No. 365 of 1919. The view taken by the District Munsif that manusham is a present is unsustainable.

(2.) The material facts in this case relating to the plaintiff's claim are as follows: The 1 defendant's father who was the kanomdar from the jemmi under a kanom document dated 14 August 1912 demised his kanom rights to one Cheeru on kanom for a period of 12 years from 23 February 1922. The document recites a receipt of Rs. 130 by 1 defendant as manusham and provides that Cheeru is to be in possession for the said period of 12 years enjoying the usufruct and that he must surrender possession thereof after the expiry of the demise : see Ex. A. The plaintiff's case is that Cheeru assigned her kanom interests to one Kannan on 8 January 1925 and Kannan in turn assigned his rights under the kanom to the plaintiff on 14 January 1925. Cheeru got possession of the properties from defendant 1 and transferred the same to Kannan from whom the plaintiff also got possession on the date of the assignment to him. The documents of assignment executed by Cheeru and Kannan respectively are not produced in the case though the particulars of the assignments are referred to and set out in the plaint. The said assignments are also practically admitted by the defendants in para. 3 of their written statement.; It is also admitted that the plaintiff was dispossessed on 5 September, 1928 by the jenmi in execution of the decree in suit No. 250 of 1925 to which both the plaintiff and 1 defendant were parties. The plaintiff as assignee of Cheeru says that the kanomdar under Ex. A to whom the property was demised for a period of 12 years and. his assignees including the plaintiff were in possession only for four years six months and nine days and that he is therefore entitled to claim refund out of the manusham amount, an amount proportionate to the remaining period of the kanom less the rent for that period which he would have to pay to 1 defendant if he had not been dispossessed. In the plaint further reliefs were prayed for, but they are not pressed before me.

(3.) It is argued for the plaintiff (petitioner) that under the terms of the demise Ex. A there is an implied covenant on the part of 1 defendant as grantor of the kanom, for quiet enjoyment of the demised premises by the tenant, for the full period of the demise and that the plaintiff as assignee of the lease from Cheeru is entitled to the benefit of that covenant as against 1st defendant. In support of this contention reliance is placed on Section 108, T.P. Act, which runs as follows: In the absence of a contract to the contrary, the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.