HIGH COURT OF KERALA
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(1.) A short but interesting question has been raised in this second appeal by the plaintiff, who lost before both the lower courts. A few facts may be stated.
(2.) The appellant filed O. S. No. 755 of 1949 for eviction of the respondents with arrears of rent. The case arose in Hosdrug; and to that area the Malabar Tenancy Act and the Malabar Compensation for Tenants' Improvements Act were made applicable only in 1951. In 1952 the parties compromised the suit and a decree in terms of the compromise was passed. The decree provided that the respondents (the defendants in that suit) would surrender the property on receiving a sum of Rs. 2,400/- being the value of the improvements effected by them. It was also recited that the respondents gave up their right to claim benefits under the Malabar Tenancy (Amendment) Act of 1951 regarding fixity of tenure. Nevertheless, the appellant did not deposit the amount: on the other hand, she brought the present suit in 1959 for arrears of rent for one year. The lower courts have dismissed the suit on the ground that the appellant cannot claim arrears of rent since there is no provision in the compromise decree for claiming arrears of rent or mesne profits, the appellant's only remedy being to deposit the amount mentioned in the compromise decree and recover possession of the property. The short question for consideration is whether that decision can be sustained.
(3.) At the time when the compromise decree was passed both the Malabar Tenancy Act and the Compensation for Tenants' Improvements Act applied to Hosdrug. In other words, the tenant could have then claimed fixity of tenure and also value of improvements if he chose to surrender. He could have also claimed 10 remain in possession until the value of improvements was paid. The relevant portions of the compromise petition may now be extracted:
"That the defendants hereby agree to surrender possession of the suit property to the plaintiff on receiving a sum of Rs. 2,400/- being the value of improvements effected by them in the property."
"The defendants hereby give up their right to claim the benefits under the Malabar Tenancy (Amendment) Act, 1951 regarding fixity of tenure as they are now satisfied that it is in their best interests and more beneficial to them to receive the value of improvements amounting to Rs. 2,400/- and to surrender possession of the suit property to the plaintiff. The defendants, therefore, have no objection for a decree for recovery of possession of the suit property being passed in favour of the second plaintiff. The second plaintiff will deposit Rs. 2,400/- into court towards the value of improvements due to the defendants".
The first clause shows that the respondents agreed to surrender possession or receiving a sum of Rs. 2,400/-, which means that until the amount was deposited the relationship between the parties would remain unaffected. In other word; until the agreed amount was deposited, the tenancy was not terminated. Putting the idea again differently, the compromise decree did not put an end to the relationship of landlord and tenant. It follows that if the amount was not deposited, the landlord and tenant relationship continued.;
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