Decided on September 26,1968



- (1.) The judgment under appeal is quite an unhappy performance, both in regard to the reasoning and the resultant direction by way of remand. However, I hasten to add that this observation does not imply my preference for the defendant's case on the merits. Moreover, my attention has been drawn to certain subsequent events which have happened, and having due regard to these developments, I propose to give directions which, at this stage, will promote justice better than if I proceed to decide on the merits and has the merit of concurrence by parties.
(2.) This suit was brought by the plaintiff - the respondent in the second appeal - against the 1st defendant - the appellant before me - for recovery of arrear of rent for the year 1137 for a magnificent sum of Rs. 14.40 Obviously, there is something more than meets the eye in this litigation and this is evident from the defendants' contention that the Meethaleputhiyottil tarwad (hereinafter referred to, for short, as M. P. Tarwad) from which the plaintiff claims to derive his title, is not the jenmi of the property and that the Thottil tarwad (hereinafter referred to, for short, as T. Tarwad of the first defendant) is not the tenant of the property but its jenmi. The plaintiff claimed title in the M. P. tarwad and proceeded to state that the tarwad was holding it under the former as per an ancient lease of 1070 on an annual rent of Rs. 5/- plus 150 cadjans and 2 cocoanuts. The learned Munsiff found on issue No. 1 that the plaintiff and her predecessors in interest had no title to the property and that even if they had " that had been lost by adverse possession and limitation". Issues had been raised relating to title as well as limitation and adverse possession. The court went further to hold that "there is a complete absence of any evidence regarding the oral lease." On these findings the suit was dismissed, which led to an appeal which was disposed of by the Subordinate Judge, directing a remand. He found, by a curious process of reasoning, that the plaintiff and her predecessors in interest had title to the property and by a more obscure ratiocination negatived the plea of adverse possession. I am not dilating on these two aspects in view of the ultimate direction I am giving in this judgment and with a view to avoid prejudice to either party on account of any observations by me herein. May be, the plaintiff's case on title is entitled to acceptance, as Shri. Kelu Nambiar, learned counsel for the respondent, urged before me quite persuasively relying on Mr. Justice Madhavan Nair's decision in Second Appeal No. 1316 of 1961 (unreported)
(3.) The weakest part of the judgment, however, is where the Subordinate Judge negatives the oral lease set up in the plaint, and by some sixth sense, as it were, observes that the tarwad of defendants 1 to 3 was holding the property "under some entrustment from the tarwad" (i. e. the M. P. Tarwad), a case which neither party had put forward in the pleadings. The appellate court, after holding "that the oral lease set up in the plaint is not true" got into a generous mood and said "but an opportunity should be granted to the plaintiff to amend the plaint and claim an appropriate amount by way of damages for use and occupation. For this purpose, the suit has to be remanded to the lower court''. Had the defendant submitted to a decree as prayed for at least he would have been, entitled to a tenancy which is a valuable right under the Land Reforms Act, but as a result of the judgment in appeal even what the plaintiff was willing to give to the first defendant viz., the status of a tenant, has been taken away by the appellate Judge, who has now directed that the plaintiff is to be given an opportunity "to get the plaint amended claiming an appropriate amount by way of damages for use and occupation". There is some force in the argument of the appellant that injustice and illegality are writ large in this judgment. Even the direction for remand, solely to enable the plaintiff to amend the plaint to create a cause of action, under the circumstances set out above, is not within the powers of the appellate court. Neither O.41 R.23 nor even S.151 CPC. (assuming it to confer a power of re remand in situations uncovered by the former provision but promoting the ends of justice) justifies the course adopted. Nevertheless, I should prefer to dispose of this appeal on the lines set out and agreed to by both parties.;

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