(1.) THE facts of the case are thus: THE 1st defendant had leased the property to the plaintiffs as per Ext. Al dated March 21, 1951. On January 25, 1955 , the tenants surrendered the holding to the landlord as per the registered release deed (Ozhimuri) Ext. A2 after settling all accounts till date. On March 19, 1955 , the 1st defendant mortgaged the property with possession to defendants 2 and 3. On January 25,1956 , plaintiffs instituted this suit for recovery of the property with mesne profits under S. 24 of the Malabar Tenancy Act on the ground that the land was surrendered to the 1st defendant for her own cultivation but she had alienated it. Defendants 1 to 3 contested the suit stating that S. 24 of the Malabar Tenancy Act had no application to a voluntary surrender by the tenant. THE 1st defendant having died during trial defendants 4 to 9 have been impleaded as her legal representatives.
(2.) COUNSEL for plaintiffs-respondents concedes that only the sub-section (1) of S. 24 of the Malabar Tenancy Act, 1929, as amended in 1954, is relevant to the claim in this suit. It reads thus: "in any case in which eviction has been obtained on the ground specified in clause (5) of S. 23 subject to the provisions of S. 41, if in any one of the six agricultural years following such eviction, the landlord, who has obtained such eviction fails without reasonable excuse to use the major portion of the lands, for the purpose for which such eviction was obtained, or transfers any of the lands to any person on any kind of lease or mortgage with possession or on kanam, kanam-kuzhikanam, kuzhikanam or verumpattam, the cultivating verumpattamdar shall be entitled to sue for the restoration to him of the possession of all the lands from which he was evicted and to hold them with all the rights and subject to all the liabilities of a cultivating verumpattamdar. " Obviously this provision applies only to cases "in which eviction has been obtained. "
The Munsiff, Ottapalam, relying on certain observations in Saidalavi Thangal v. Mohideen (1950- II M. L. J. 767) held a voluntary surrender to be 'eviction' by private treaty and therefore decreed the suit and that has been affirmed by the Subordinate Judge, Ottapalam. Hence this second appeal by defendants 2, 3, 4,6,8and9. "eviction" within the meaning of the Malabar tenancy Act is right. S. 3 (6) of the Act defines that term thus: "'eviction' means the recovery of possession of land from a tenant and includes the redemption of a kanam or kanam-kuzhikanam. " Admittedly, the latter (inclusive) part of the definition is not relevant here, as the concerned transaction was a simple lease. Saidalavi Thangal v. Mohideen (1950-II M. L. J. 767) was decided on September 5,1950, before the Malabar Tenancy Act was amended by the acts XXXIII of 1951 and VII of 1954. S. 3 (e), 20 (5) and 21 (1) of the Act as they stood then may be taken to have corresponded with S. 3 (6), 23 (5) and 24 (1) of the Act as they are after the amendments of 1951 and 1954, ignoring for the present the amendments effected therein. The material part of the judgment in the aforesaid case reads thus: "the view of the Courts below as to this is that in terms of S. 21 (1) of the Act the present is a case in which eviction as defined by S. 3 (e), i. e. , recovery of possession of land from a tenant, was obtained by the first defendant on the ground specified in clause (5) of S. 20, no matter that he obtained it by merely making a private demand and without having recourse to a suit under S. 20. No doubt S. 21 (1) following, as it does, closely upon S. 20 which relates to a suit for eviction prima facie suggests that the eviction referred to in S. 21 (1) is one obtained by means of a suit as mentioned in S. 20 (1 ). . . 'eviction' according to the Concise Oxford Dictionary is derived from vincere, to conquer, and means expulsion, especially of a tenant from land, or more generally recovery of property from a person by legal process. As pointed out in Ramanatha Aiyar's Law Lexicon of British India the word is derived from evinco, to overcome, and according to Tomlin's Law dictionary quoted by the author means, a recovery of land, etc. , by form of law. The author further observes: 'in its original and technical meaning it is an expulsion by the assertion of a paramount title and by process of law; a recovery of land, etc. , by form of law; a lawful dispossession by judgment of jaw; an ouster. Act of the landlord with the intention and having the effect of depriving the tenant of the enjoyment of the demised premises; the term is now popularly applied to every class of expulsion. ' The definition of the word 'eviction' in S. 3 (e) of the act, it will be seen, is not restricted to cases of expulsion in the sense of ejection by force which is the ordinary meaning of the word as given in the dictionaries, for instance, the Concise Oxford Dictionary. Much less is it restricted to dispossession by judgment in a suit. It means purely and simply recovery of possession according to the statutory definition no matter how the recovery comes about. . . . . . . . I am of opinion that S. 21 (1) of the Act, which is a substantive enactment in itself, is not controlled in the wider meaning of 'eviction', which it prima facie carries with it, by anything in S. 20 with which it occurs in juxtaposition in the statute, with which it no doubt has to be read in order that the statute may be read and construed as a whole, but in which is to be found nothing repugnant, to that wider meaning. " It is clear that in the learned judge's opinion the word "eviction" normally means expulsion by force or by a suit; but as it has been defined in the Act to mean recovery of possession of land from a tenant it has a wider meaning in S. 24 of the Act to include recovery by whatever means and hence the view expressed by the Courts below that it would cover a "recovery. . . without having recourse to a suit" and therefore a surrender is right. Obviously, the learned judge overlooked the significance of the word "recovery" occurring in the definition; and did not advert to the provision in S. 44 of the Act (as it then stood) specifically relating to "surrender of holdings" wherein surrenders by registered instruments were recognised as valid, without any provision for avoidance (as was introduced later by the amendment of 1954 ). The expression "recovery", in common as well as legal parlance, means taking or realising through the process of law or by force or compulsion' and 'eviction' is an act of the landlord against a tenant and therefore cannot in any view comprehend a "surrender" which is a voluntary act of the tenant in favour of the landlord. Even apart from the above I feel strongly that if S. 44 of the Act (as it stood then) which specifically referred to surrenders and recognised them as valid and binding on the tenants, had been brought to the notice of the learned judge he would not have held a surrender to be an eviction which was avoidable under S. 21 (1) of the Act. S. 44 (as it stood in 1950) read thus: "surrender of holdings. A kanamdar or kuzhikanamdar or customary verumpattamdar who has obtained a renewal or a cultivating verumpattamdar may, at the end of any agricultural year, surrender his holding to his immediate landlord, by a registered document. Such a landlord shall not be bound to accept the surrender unless. . . . " It is pertinent to note here that the Act as amended in 1954 provided for annulment of evictions in its S. 24 and for annulment of surrenders in S. 53, which is proof positive that the Act meant eviction to be distinct from a surrender. The dictum to the contrary in Saidalavi Thangal v. Mohideen (1950-II MLJ. 767) cannot therefore be said to lay down the law correctly.
As the surrender concerned here was on January 25, 1955, it is the law as on that date, and any law made thereafter to affect transactions of that date, that are strictly relevant here. Under S. 53 of the act, as amended in 1954, a surrender by a tenant was made "voidable at the option of the tenant if it was made by a "document executed. . . after the 28th July 1950 and before the commencement of the Malabar Tenancy Amendment act, 1954. " That amending Act came into force on March 19,1954, and the surrender concerned here was long thereafter, on January 25, 1955. Hence its validity and effect was not affected by the Act even as amended in 1954. The Malabar Tenancy Amendment Act, 1956, which put the landlords, who obtained possession from a tenant through a Court of law, in a position worse than mere trespassers a trespasser acquires an indefeasible title to the land by possession for 12 years but a landlord who was put in possession by a court can be ousted on a petition under S. 5 (2) of this Amending act even after 14 years of possession has not provided for avoidance of surrenders made after the commencement of the Act VII of 1954. The reason is obvious: The Act of 1954 assured fixity of tenure in as full a measure as possible to all tenants; and if thereafter a tenant has made a surrender with his free consent there is nothing to be protected by law. The avoidance of surrenders provided for by the Kerala land Reforms Act, I of 1964, as amended by the Kerala Prevention of Eviction act, XII of 1966, relates only to surrenders made "on or after the 1st april 1964". Thus neither under the law on the date of Ext. A2, nor under any law made thereafter, are the plaintiffs entitled to avoid or ignore the surrender they made under Ext. A2 and claim restoration of possession to themselves.
(3.) COUNSEL for plaintiffs-respondents pressed courageously that the surrender under Ext. A2 was not a voluntary surrender but was one made under threat of a suit for eviction and therefore it was tantamount to an eviction by the landlord. This contention is based on a lawyer's notice, Ext. A3, issued on behalf of the 1st defendant on the 10th march 1954, demanding surrender of the property before the next Meenam 30th (which corresponded to 12th April 1954) on threat of a suit for recovery immediately after that date. There is no evidence in this case to show that the notice reached the plaintiffs. Admittedly, no surrender was made as demanded therein. On the other hand, Ext. A2, the deed of release, shows that, after date of that notice, the plaintiffs had cultivated the land and had paid the entire rent for 1129 and 1130 M. E. inclusive of the Makaram crop of the latter year. That deed shows further that even before its date a part of the rent for 1130 m. E. (which commences on September 17,1954) had been paid by plaintiffs and accepted by the 1st defendant. It then follows that that notice to quit, if it had reached the plaintiffs, had been given the go-by by both the parties and that the plaintiffs continued, with the assent of the 1st defendant, to enjoy the land as lessees ignoring Ext. A3. The deed of release, Ext. A2, executed on january 25, 1955, makes no reference at all to the notice of 10th March 1954. No reference to that notice has been made even in the plaint. There is thus no case to the plaintiffs that the surrender under Ext. A2 was a consequence of the notice Ext. A3. On the other hand, the recital in Ext. A2 is. This shows that the surrender was a voluntary act on the part of the plaintiffs made on a request of the 1st defendant and that no element of force or compulsion was involved in it. The surrender as such is not impugned in the pleadings. The fact that there is no allegation in the plaint that the surrender was affected by any compulsion shows that the present contention is suggested only in the ingenuity of counsel who found the mainstay had on the dictum in Saidalavi Thangal v. Mohideen had collapsed. Ingenuity of counsel cannot do duty for a pleading of fact that has necessarily to be made by the party concerned but has not been made at any time during the last ten years of pendency of this suit in the Courts below and here.
In the result, this second appeal succeeds, and the plaintiffs are found not entitled to any relief in this suit. The decree of the courts below is therefore set aside and the suit is dismissed. The normal rule under S. 35 CPC. is that the costs follow the event. As this suit is to nullify an act done by the plaintiffs themselves solemnly by a registered instrument and with free consent, they have to pay the costs of the appellants throughout. Allowed.;