(DUMING ROSARIO) SALDANHA Vs. ROMAN CATHOLIC CHURCH

JUDGEMENT

(1.) In this case the plaintiff (the Roman Catholic Church, Mermajal) represented by, John Francis Cutinha instituted O.S. No. 404 of 1924 on the file of the District Munsifs Court, Mangalore to eject the defendants, the Saldhanas, on the ground that the suit properties belong to the Church and were leased to the father of defendant 1 and the grandfather of the other defendants in 1858 under Ex. D. The lessee died in about 1876 but defendant 1 who is the surviving son and the other defendants who are the grandsons of the original lessee, continued in possession of the properties paying the rent stipulated in Ex. D. On 2nd October 1923 the plaintiff gave notice of ejectment and the suit was instituted on 13 July 1914. The main pleas raised by the defendants are: (1) that the defendants are mulgeni tenants under Ex. D and are not liable to be ejected and (2) that they have acquired mulgeni rights by adverse possession. There were two subsidiary questions of which one related to the amount of rent to which the plaintiff would be entitled to in case he is allowed to eject the defendants, and the other related to the exact value of the improvements to which the defendants may be entitled to if they have to surrender possession of the properties.

(2.) The rights of the parties, turn on the construction to be placed on Ex. D. The Court of first instance construed it in favour of the defendants and dismissed the suit for possession. The lower appellate Court, however, construed the document in the way sought for by the plaintiff and has given a decree in ejectment. The second appeal is accordingly preferred by defendants 2 to 6, defendant 1 having died and I have to construe this document. The document is set out in full in para. 7 of the lower appellate Court's judgment and is as follows: Genichit (lease deed) executed by Juje Saldhana in favour of the Mermajal Church dated 22 August, 1858. Particulars of the rent of Rs. 96 fixed for Kori bettu land bail and bettu comprising six Mudies and Bagayat starting with Rs. 80 payable in January 1859 and rising by increments so as to reach Rs. 96 in 1869, besides the yearly perquisites. You shall not demand additional rent over and above Rs. 96. This term shall be void in case any portion of the rent should fall in arrears. In case a new tenant should be introduced owing to my default in paying rent regularly or in case I surrender the holding to the Church, I shall have no claim to improvements. I have no right to sell or cut down the tress in the land except for domestic purposes without the consent of the tan (meaning the Church Assembly). I have no right to sell away my improvements to strangers but am bound to make them over to the Church for a fair price. I alone shall have a right to make improvements in the land and you (the lessor) shall have no right to do so.

(3.) The main arguments in favour of the defendant are set out in para. 12 of the original Court's judgment and the arguments in favour of the plaintiff are contained in para. 10 of the, lower appellate Court's judgment. Thus these paragraphs contain all the arguments advanced by the respective parties. On behalf of the appellants, their learned advocate Mr. Adiga laid main stress on the following circumstances so far as I was able to follow him. He drew my attention to the following sentences in the document: You shall not demand additional rent over and above Rs. 96. I have no right to sell or cut down trees in the land except for domestic purposes without the consent of the "ten" (meaning the Church Assembly)-I have no right to sell away my improvements to strangers but am bound to make them over to the church for a fair price. I alone shall have right to make improvements in the land and you (the lessor) shall have no right to do so.