MATHU Vs. PALIAM ESTATE AND ORS.
LAWS(KER)-1955-12-21
HIGH COURT OF KERALA
Decided on December 20,1955

MATHU Appellant
VERSUS
Paliam Estate And Ors. Respondents

JUDGEMENT

N. Varadaraja Iyengar, J. - (1.) THIS appeal is by the 1st Defendant and arises out of a suit filed on behalf of the Palish Estate for recovery of certain plots of land, aggregating in area to 1 acre 49 cents, on the basis of a with rent dues past and future. The original lesee was one Crashing Remain but by sockeye assignments, the Defendants 1 to 4 had come into possession of separate portions of the leasehold. Under the original lease arrangement, rent was due at the rate per year of 53 paras 7 Edangazhies and 8 Visams of paddy besides Rs. 2 -7 -10 pies way of tax, this tax portion having been reduced from 1114 to Rs. 1 -7 -3 pies. According to the plaint the arrears of rent and tax due from the tenants till date of suit amounted to 1335 Paras 13 Visams of paddy and Rs. 27 - pies. The plaint mentioned that major portion these amounts comprising the barred arrears till 1120 was being set off towards one -half of the value of improvements effected in the leasehold and due to the defendants and decree for the balance amount being the arrears for the 3 years before suit viz. 1121 to 1123 was alone being claimed.
(2.) ALL the Defendants contested the suit. Their contentions were however generally repelled by the court below and decree was passed in plaintiff's favour in terms of the plaint subject only to payment of certain improvement value ascertained by the commissioner's report in the case to the several Defendants. In this appeal by the 1st Defendant. We are concerned with two only of the contention raised him in the court below. They are (i) personal liability at the rate only of 5 Paras of paddy and 3 annas per year or in any event at rate fixed comparatively with reference to the area of 22 cents in his possession, and (ii) right to all the improvement value effected by him in his plot of 22 cents without set off of the barred arrears of rent in respect of other plots.
(3.) TAKING up the first contention, as 1st Defendant's personal liability for rent, the 1st Defendant's case is that Ext. II assignment dated 24 -10 -1104 in his favour had provided for liability of 5 Paras of paddy and 3 annas only and it was only on that basis that rent and tax was paid by him and accepted by the Paliam estate. Vide Ext. 111 series of receipts between 1104 to 111. It was argued on his behalf that this rate must accordingly be taken to be the proper rate as between him and the estate. We cannot accede to this argument. For Ext. 111 series on scrutiny do not indicate any novate as between the parties but appear to denote some partial payments alone and acceptance as such. The alternative contention under this head on the basis of proportionate liability calculated with reference to the ratio of the area in 1st Defendant's possession and the total area of the leasehold viz., 22 to 49 1/2, is only proper and therefore accepted. We fix this amount roughly at 7 1/2 Paras and 5 1/2 annas per year. We hold accordingly that the 1st Defendant's personal liability for rent from 1121 onwards will be fixed on the above basis.;


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