Decided on December 08,1953



Ramaswami, J. - (1.) These are two connected civil revision petition and civil miscellaneous second appeal arising from the decrees and judgment of the learned District Judge of North Malabar in A. S. Nos. 65 and 64 of 1949 respectively.
(2.) The facts are: The suit property which is a paddy field and was taken on lease by the defendants' deceased father Baduvan Haji under a kychit dated 27-2-1912 for a yearly rent of 200 seers of paddy and sundries worth Rs. 1-8-0. After Baduvan Haji's death fresh documents were executed in the form of a kanam demise with a kanam of Rs. 2 and a period of 8 years. Under the kanam deed the rent was the same rent of 200 seers. A kanam deed and a kanam marupat were executed and the marupat was handed over to the plaintiff. But neither document was registered. On the strength of the unregistered kanam, marupat executed by the two defendants sons of Baduvan Haji, the plaintiff filed O. S. No. 589 of 1947 to recover arrears of rent for four years amounting to Rs. 302-0-11. Defendants 1 and 2 along with two others, who were the heirs of Baduvan Haji, filed O. P. No. 71 of 1947 in the suit on the foot of the property being still held under the kychit of 1912 and not under the kanam and marupat and praying under the Malabar Tenancy Act for fixation of fair rent. The learned District Munsif following --'Rajendrasingh v. Hulasadas', AIR 1945 Nag 69 (A), reviewing all previous decisions held that the kanam marupat was inadmissible in evidence for want of registration, that the holding was therefore held under the earlier kychit of 1912, that the fair rent payable was only 1125/8 edangalis of paddy according to the Badagara measure and that the defendants were liable to pay fair rent only at that rate and that the arrears of rent for the period covered by the suit at that rate amounted only to Rs. 137-7-5. The suit and the O. P. were accordingly disposed of and there were appeals contending that the finding of the learned District Munsif that the holding of the defendants now was not under the kanam deed but under the earlier kychit was not correct and that the unregistered kanam deed is admissible in evidence to prove an agreement under Section 53A, T. P. Act and that the contract rate should have been decreed for the period covered by the suit. The learned District Judge negatived the contention of the appellant regarding the admissibility of the unregistered kanam deed under Section 53-A, T. P. Act, confirmed the finding of the learned District Munsif regarding the right of the defendants to claim fixation of the fair rent but held that it will have no retrospective effect and that the plaintiff was entitled to claim rent at the contract rate for the suit period. On the above findings the decrees of the learned District Munsif were modified. Hence the civil revision petition and the civil miscellaneous second appeal by the plaintiff.
(3.) The point for determination is whether the equitable doctrine of part performance under Section 53A, T. P. Act is available as a defence only.;

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