- (1.) These are connected cases. The plaintiff in OS No. 118 of 1958, Sub-Court, Ernakulam - Cochin Devaswom Board, Trichur (hereinafter referred to as the 'board') - is the appellant in CA No. 2312 of 1977. The respondents in the said appeal, defendants 2, 4, 6, 11, legal representatives of the 8th defendant and the legal representative of the 1st defendant in the suit are the 'tenants' of the suit property. They are the petitioners in Special Leave Petition No. 4906 of 1978. The Board - appellant in CA No. 2312 of 1977 - is the respondent in Special Leave Petition No. 4906 of 1978.
(2.) The suit, OS No. 118 of 1958, Sub-Court, Ernakulam had a chequered career. It was filed by the Board, representing one of its institutions or units - the Ayyampilly Devasworn (hereinafter called 'devaswom') against the tenants under different demises - Kanam, verumpattom and other demises. The Board prayed for a declaration that it has the right of fishing in and over the plaint lands, nearly 220 acres in extent, out of which 107 acres are paddy lands. The Board claimed right of prawn fishing in the plaint schedule lands and also stated that the tenants-defendants had no such fishing right and prayed for an injunction to restrain the defendants from interfering with the Devaswom's right. It was claimed that the Devaswom had reserved the right of fishing at the time of granting the demise and alternatively that it was entitled to carry on prawn fishing as a right of easement.
(3.) The trial court found against the plaintiff. But the lower appellate court found that the Devasworn was entitled to exercise the right of fishing, on the basis of a right of easement. The matter came up before the High court of Kerala in SA No. 1208 of 1964. By judgment dated 10/4/1970, the High court held that the grant by the Devaswom did not confer the right on the tenants to carry on the fishing operations in the plaint lands. The plaintiff was held entitled to carry on the fishing operations in the plaint lands as well as in the thodus. The High court further found that in view of the Kanam Tenancy Act of 1955 and the Kerala Land Reforms Act of 1963, the plaintiffhad been deprived of its right of fishing and that the same had become vested in the tenants. The matter was remitted to the trial court for an investigation and for passing appropriate orders. After the remit, the trial court held that the plaintiff's claim for fishing right in respect of lands granted on Kanam demise was lost by reason of the provisions of the Kanam Tenancy Act of 1955 and had vested in the Kanam tenants. But the trial court held that the right remained unaffected in respect of lands held on Verumpattom and other demises. The Devaswom filed an appeal to the lower appellate court in respect of the Kanam lands and the defendants filed an appeal in respect of the Verumpattom lands. The Devaswom's appeal (AB No. 221 of 1972 was allowed and the defendants' appeal (AS No. 248 of 1972 was dismissed. Against the aforesaid judgment and decrees, the defendants-tenants filed SA No. 1163 of 1973 before the High court of Kerala. The High court held that in view of Section 3 of the Kanam Tenancy Act, the Board was divested of the right to carry on prawn fishing, since the right vested in the Kanam tenants. It was further found that with regard to Verumpattom tenants and tenants under other demises the rights of the landlord stood transferred to the tenant under the provisions of the Kerala Land Reforms Act. It was finally concluded that the Devaswom was divested of its right of fishing and that the same stood vested in the tenants - both Kanam tenants as well as tenants under the Verumpattom and other demises. The second appeal filed by the tenants was allowed and the plaintiff's suit seeking a declaration and injunction was dismissed. A direction was given to the trial court to apportion the collections deposited by the receiver and for appropriate disbursement thereof for parties entitled to the said amount. The plaintiff in the suit the Cochin Devaswom Board filed CMP No. 6759 of 1977 and prayed for certain clarifications in the aforesaid judgment delivered in SA No. 1163 of 1973. This petition was considered along with CMP No. 9751 of 1977, a similar application filed by the tenants/defendants. The above civil miscellaneous petitions were disposed of in the following manner, by order dated 3/8/1977. In CMP No. 6759 of 1977, the decree was modified in the following manner: "We would therefore allow the second appeal, and modify the decree and judgment of the lower appellate court to this extent, that the plaintiff's right of fishing in respect of the Kanam lands will stand extinguished on and from 1/4/1956, and in respect of the Verumpattom lands and other cognate tenures, on and from 1/1/1970; and that in other respects the decree of the lower appellate court will stand. There will be no order as to costs. "in CMP No. 9751 of 1977, regarding the apportionment of the collections in deposit in court, directions were given to the following effect: "This will be done in appropriate proceedings in the trial court for directions for disbursement of the collections made by the Receiver during the time he functioned, and by those responsible, in respect of the collections thereafter. ";