HIGH COURT OF KERALA
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(1.) THESE are two revision petitions by the Jamath Mosque of Kochangadi and the orders sought to be vacated are the orders of the learned temporary Additional District Judge of Anjikaimal in M. P. Nos. 561 and 576 of 1952. M. P. No. 561 of 1952 relates to A. S. 214 of 1123 and M. P. 576 of 1952 to a. S. No. 216 of 1123. The prayer in both the petitions was for a posting of the concerned appeals for hearing and disposal.
(2.) THE appeals arise from O. S. 270 of 1121, a suit filed by the petitioner before the court of the District Munsiff, Cochin. THE decretal portion of the judgment reads as follows: "in the result the plaintiff mosque is given a decree for surrender the plaint schedule properties with arrears of rent as claimed in the plaint as also future pattom as per the provisions of the verumpattomdars Act. Plaintiffs are also entitled to Rs. 58-8-0 as damages for waste. Plaintiffs will deposit Rs. 935-0-8 due to the 3rd defendant, Rs. 22-3-0 due to the 4th defendant and Rs. 804-14-4 due to the 5th defendant as value of their respective improvements. Personal relief is allowed only for arrears in respect of the last 6 years. Set off is allowed between the plaintiffs and defendants 3 and 4. THE plaintiff will get their costs from the 3rd and 4th defendants. Defendants will bear their costs. Plaintiffs and defendants 3 and 4 will share the commission batta in equal proportions. Plaintiffs will pay 3rd defendant the amounts covered by Ext. III series".
The appeals were stayed - it was a consent order -under the Proclamation of His Highness the Maharaja of Cochin, No. VI of 1124, when they came up for hearing on 24. 3. 1950. The petitioner's case is that the consent was given under a misapprehension, that the stay directed was wrong, and that it should be deemed to be inoperative on the ground that the proclamation violates Arts. 14,19 (1) (f) and 31 of the Constitution. It is not disputed that if the Proclamation is intra vires of the Constitution, the stay ordered is correct and should be maintained. The only contention is that even though the Proclamation was promulgated prior to the Constitution, its continued operation after 26-1-1950 is hit by the Articles above mentioned.
Proclamation opens with the words: "whereas Government intend to consolidate and amend the law relating to landlord and tenant; and Whereas it is considered expedient, pending the enactment of such legislation, to stay the collection and recovery of pattom in excess of the pattom payable in money specified in the contract of tenancy in respect of garden lands the major produce of which is cocoanut and to prevent the eviction of certain classes of tenants and kudikidappukars from their holdings; We are hereby pleased to command as follows: and concludes with S. 6: "this Proclamation shall be in force until such time as Government may, by notification in the Cochin Government Gazette, determine".
(3.) IT is admitted by the Mosque that the lease involved in A. S. Nos. 214 and 216 of 1123 is a verumpattom lease of lands situate outside the limits of the Municipalities constituted under the Cochin Municipal Act, XVIII of 1113, and hence coming within the ambit of the Cochin Verumpattomdars Act, VIII of 1118. That Act conferred fixity of tenure on verumpattom tenants and the grounds on which eviction was possible after that Act came into force was only on any one of the six grounds enumerated in S. 8 of that enactment viz. , " (a) that he has willfully denied the title of the jenmi or of any intermediate landlord between himself and the jenmi before the date of such suit; (b) that he has intentionally and willfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding; (c) that he has not paid the pattom due in respect of the holding or the revenue, cess, tax or special charges, if any, specified in S. 6; (d) that he has not paid within six months from the commencement of this act the entire arrears of pattom, if any, due in respect of the holding at the commencement of this Act; (e) that he has intentionally or otherwise allowed a stranger to encroach on the holding or part thereof adversely to the interests of the jenmi or any intermediate landlord between himself and the jenmi; (f) that at the end of the agricultural year the jenmi or any intermediate landlord requires the holding or part thereof, except the kudiyiruppu bona fide for building residential quarters for the use of himself or for any member of his family or tarwad or thavazhi who has a beneficial or proprietory interest therein".
The complaint of the Mosque is that Proclamation VI of 1124 makes still further inroads into the rights of the land-lord - inroads which violates the Constitution - by suspending eviction for an indefinite period and denying the cocoanut pattom directed under S. 5 of the Cochin verumpattomdars Act, VIII of 1118. The provisions in that behalf are those embodied in Ss. 1 and 2 of the Act: 1. Notwithstanding anything contained in the Cochin verumpattomdars Act, VIII of 1118, (hereinafter referred to as the Act) or in any other Law for the time being in force, no suit for eviction of a verumpattomdar to whom the provisions of the Act apply, shall be maintainable in Our courts on the ground that he has not paid the pattom due in respect of the holding or the revenue, cess, tax or special charges, if any, specified in s. 6 of the Act, and all suits, appeals, revisions, reviews and proceedings in execution of a decree shall be stayed by OUR courts in so far only as they relate to the relief for eviction of such verumpattomdar on the ground mentioned in Clause. (c) of sub-s. (1) of S. 8 of the Act. 2. (1) Notwithstanding anything contained in sub-s. (2)of S. 5 of the Act, where cocoanut is the major produce of a garden land and the pattom fixed therefor under the contract of tenancy is payable by the verumpattomdar in money, the collection or recovery by the lessor of the pattom in excess of the amount payable in money specified in the contract of tenancy is, in respect of the pattom payable from 1st Chingom 1124, hereby stayed. (2) Where a verumpattomdar to whom the provisions of sub-s. (1) apply has by himself or through his predecessor in interest been holding the garden land at the commencement of the Act as a Verumpattomdar and has renewed the contract of tenancy after the commencement of the Act and undertaken to pay pattom in kind or a higher pattom in money, the collection or recovery of the pattom payable by him in excess of the pattom in money fixed in the contract of tenancy subsisting immediately prior to the commencement of the act is, in respect of the pattom payable from the day of Chingom 1124, hereby stayed".;
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