Decided on January 03,1955

VAREED Appellant


- (1.) This Second Appeal arises out of a suit for eviction which was instituted under the following circumstances. The property involved in the suit is the jenmom property of the Pathiyari Devaswom managed by the Kodasseri Sthanam. Along with other items, this property had been demised by the Sthanam in favour of Thekkedath Maruthombilli Mana in the year 1065 under a document styled as a Panayam and making provision for payment of michavaram and other customary dues. Later on, this demise was renewed under Ext. VI dated 9.3.1092 and still later under Ext. V dated 3.11.1106. Pyloth, the predecessor-in-interest of defendants 1 to 7, took all these properties on lease from Maruthombilli Mana by executing the lease deed Ext. B dated 14.7.1102. Under Ext. C dated 18.2.1120 the Mana conveyed all the rights which it had over the plaint item in favour of the plaintiff. The proportionate pattom recoverable from this item was also specified in Ext. C and the plaintiff was authorised to realise the pattom that had been left in arrears. On the strength of Ext. C the plaintiff instituted the present suit for recovery of the property with arrears as well as future pattom.
(2.) The suit was resisted by the 2nd defendant who claimed to have obtained this property to his share under the partition deed executed by the heirs of the original lessee Pyloth. In respect of the arrears of pattom claimed in the plaint the 2nd defendant had set up a plea of discharge and the claim for eviction was opposed on the ground that the demise evidenced by Exts. VI and V in favour of Maruthombillil Mana was not a usufructuary mortgage as contended by the plaintiff, but was an irredeemable kanam and that therefore the 2nd defendant holding the property as a lessee under such a kanamdar is entitled to retain possession of the property by virtue of the fixity of tenure granted by the Cochin Verumpattomdars Act. The lower courts repelled these contentions and decreed the suit as prayed for. The 2nd defendant has therefore come up in second appeal.
(3.) The concurrent finding against the plea of discharge set up by the 2nd defendant cannot be agitated in this second appeal. As a matter of fact the only point that is pressed in this appeal is about the nature of the demise evidenced by Exts. VI and V, the renewal deeds in favour of Maruthombilli Mana from whom the plaintiff has derived his title to the suit property. The permanent occupancy right conferred by the Cochin Verumpattomdars Act is not available to a lessee under a usufructuary mortgage, while that right is available to a lessee under a landlord who is holding the property under an irredeemable kanam demise. Consistent with this position, the plaintiff has sought to maintain that Ext. V which is the latest renewal in favour of Maruthombilli Mana, is only a usufructuary mortgage. The document is not styled as a usufructuary mortgage, but only as a Panayam. The prior renewal deed Ext. VI is also styled as a Panayam. The earliest demise of the year 1065 in favour of Maruthombilli Mana has not been produced in this case. But Ext.VI has referred to that demise also as a Panayam. The nomenclature of the document by itself is not decisive on the question as to whether the demise was a kanam or was only a usufructuary mortgage, even though such nomenclature may afford some help in deciding the question.;

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