OUSEPH Vs. NEELAKANDAN NAMBUDIRI
HIGH COURT OF KERALA
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(1.) A learned single Judge of this court before whom the Second Appeal came up for hearing referred it to a Division Bench as per the following order:-
The Second Appeal raises a question of law of considerable importance. The question is whether a landlord can, without suing for eviction of the tenant sue for the value of a tree cut by the tenant from the holding. I think it is desirable that the question is considered by a Division Bench. I, therefore, refer this Second Appeal to a Division Bench.
The two courts below answered the question in the affirmative and in the Second Appeal the contention is repeated that the liability of the tenant was only to account for the loss of the tree as and when redemption takes place and not when, the tenant is allowed to continue in possession of the holding. The claim was based on the averment that the tenant had cut and removed a jack tree which admittedly belonged to the landlord. The two lower courts have found that the appellant cut and removed the tree.
The demise under which the landlord let the tenant into possession is called a Panayam and the tenant has executed an ethir deed, or a counterpart, thereto. Notwithstanding the label given to the document, the demise would seem to partake of all the important characteristics of a Kanom and the landlord therefore brought the suit giving rise to the second appeal only for recovery of the arrears of michavaram and damages on account of the tenant cutting and removing a jack tree. We are not, however, called upon here to decide whether the demise created an irredeemable tenure or not. The document expressly provides for surrender on demand and it also provides that if michavaram is allowed to fall into arrears, or if trees are cut, or the landlord is put to the necessity of bringing a suit against the mortgagee, the amounts that become due under these heads shall be recoverable, personally from the mortgagee, as also charged on his interests in the holding. The demise is of the year 1102 and it was a renewal of an earlier demise. The mortgagee or the tenant as he might be called as that term is defined in the Cochin Tenancy Act (XV of 1113), sold the holding to several persons after splitting the same up into different parcels. Those purchasers were also made parties to the suit and defendant 3, the purchaser of one of the parcels, who was alleged to have cut and removed a jack tree contended inter alia that he was not liable to be sued now in damages for the alleged cutting and removal of the tree. We are not concerned with the contentions relating to other matters or the question whether it was a case of actual cutting and removal or only of appropriating the timber of a tree which fell down due to oldage. The only point raised in the second appeal by the 3rd defendant is that except at the time of redemption, the landlord cannot claim the value of the tree which has been found to have been cut and removed by the tenant. Though he joined issue with the plaintiff as to the value of the tree, that matter is also now concluded by concurrent decisions accepting the plaintiffs claim that the true value of the tree came to Rs. 150.
(2.) It is settled law that a tenant is at the time of restoring the property to the landlord bound to restore it in as good a condition as it was in at the time he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and that when accounts are taken at that time he is liable to make good the loss, if any, caused by his failure to perform any of the duties imposed upon him by law. S.108(m) and the last clause of S. 76 of the Transfer of Property Act may usefully be referred to in this context. Long before the Transfer of Property Act became law in Cochin - from which part of Travancore - Cochin this case arises - courts in that State had recognised that at the time of the landlord recovering possession he was entitled to claim any loss caused to the property notwithstanding that the injury complained of had been caused more years ago than a suit for damages would lie for. So long ago as 1898 the Appeal Court of Cochin had recognised this position - see Anna v. Kunjkavu Numbasthadiri II Select Decisions 134. The appellants contention is that the landlords right to recover damages is confined to claim it at the time of the recovery of possession of the holding and not at any time anterior to it.
(3.) A decision of the Appeal Court of Cochin reported in the same volume had repelled this position. In Mathu v. Ittivarah II Select Decisions 164 the learned Judges observed:-
The Judge (referring to the Zilla Judge of Trichur whose decision was under appeal) gives no reason whatever for not entering into the question whether plaintiff should be awarded anything on account of damages for trees cut down. If this be owing to the supposition that plaintiff cannot be entitled to get anything on this account till the term of the lease expires, we must point out that that supposition is wrong.
We consider this to be a correct statement of the law bearing on the subject. It conforms to the view held in other jurisdictions and we have not been referred to any decision or other authority to the contra.;
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