Krishna Pattar Narayana Pattar vs Thrippayya Devaswom and Others

Koshi, J.—These two connected second appeals arise out of two suits instituted before the Irinjalakuda Munsiff''s Ct. by the Thrippaya Dewaswom against a kanom tenant for recovery of michavaram due for the years 1120 & 1121. O. S. 113 of 1121 relates to the michavaram for 1120 & O. S. 326 of 1121 is with respect to the michavaram for 1121. The kanom demise was of the year 1069 & both the jenmom right & the kanom right had long ago passed out of the hands of the parties to the demise. The Devas. worn acquired the jenmom right under a Ct. sale & the kanom right had come to vest in the original deft." since deceased, by successive assignments. The only dispute that now survives is as to the quantum of michavaram the tenant can be made liable for.

The kanom deed of 1069 stipulates for the payment of an annual michavaram of 2 paras of paddy besides puravaka dues. In 1114 the Davaswom instituted a suit against the tenant in O. S. 12 of 1114 on the file of the Anjikaimal Dist. Ct. for execution of a renewal deed for the cycle of 12 years ending with 1105 & for other incidental reliefs. That litigation was ultimately disposed of by the Cochin H. C. on 2-6-1118. (Vide Ex, B, copy of the judgment in A. S. 7 of 1117). It was there held that though the kanom deed set out that the jenmi had received as kanom amount Rs. 5,000 the document was really supported by consideration only to the extent of Rs. 3,790-7-6 & that the jenmi was in consequence entitled to receive as michavaram besides the 2 paras stipulated for in the demise also the interest on the part of the consideration which failed. Michavaram claimed as arrears in that suit was decreed at the rate of 129 paras 91/2 edangalis of paddy. In the two suits before us in second appeal now the Devaswom claimed michavaram at this enhanced rate & the tenant-deft. contended inter alia that he was not liable for anything more than that was stipulated for in the demise of 1069. This defence & other defenses raised in the suit were found against by the learned Munsiff who tried & disposed of the suits. Decrees were passed in favour of the Devaswom as prayed for in the respective plaints. Two independent appeals were filed by the tenant before the Anjikaimal Dist. Ct. & there he sought to re-agitate only the question as to the quantum of michavaram he was liable for. These appeals were also unsuccessful. Hence the present second appeals.

The argument raised before us by the learned advocate for the applt. is that in so far as no document has been executed pursuant to the ultimate decision in the prior suit the subsisting demise is the demise of 1069 & that the jenmi is not entitled to base his claim on the prior decree. We are afraid there is no substance in this contention. When the prior litigation was brought to a close on 2-5-1118 another cycle of 12 years had already expired in 1117 & in 1118 the jenmi instituted a fresh suit for renewal & other incidental reliefs. Thin was in O. S. 125 of 1118 on the tile of the Anjikaimal Dist. Ct., but that suit had to be stayed under Proclamation X [10] of 1119. That Proclamation is still in force. The result of the litigation that ended in 1118 was to defile & determine the rights & liabilities of the parties as under the demise of 1069 in the light of their respective contentions & that decision binds them. The fact that no renewed document has been executed will not entitle the tenant to fall back upon the terms set out in the document of 1069. Even if there had been no antecedent determination of what the actual rights & obligations of the parties are with respect to the demise of 1069, the jenmi could have maintained a suit lot michavaram at an enhanced rate on the ground that the full kanom amount mentioned in the document was not paid. The fact that there has already been a judicial determination only makes the position of the jenmi stronger & that obviates the necessity to prove in these suits the circumstances which entitle the jenmi to claim a higher rate michavaram. The argument that the suits are founded on the decree is without basis. The plaint seta out all the relevant facta commencing with the demise of 1069 & ending with the institution of the suits giving rise to these second appeals. The relationship that now subsists between the landlord & the tenant is that created by the demise of 1069 as modified by the decision in the prior litigation. The claim pub forward in the two suits is, therefore, perfectly legitimate & the two Cts. below are plainly right in decreeing the suits as prayed for in the respective plaints. The second appeals, therefore, fail & will stand dismissed with costs.

Krishna Pillay, C.J.

It would appear that Ex. A decree was not executed so far and a registered renewal taken as provided therein.

It was contended on the strength of this that the Plaintiff was debarred from claiming anything under it. In other words, though the decree provides for the terms under which the future renewals have to be taken it should to held to have become ineffectual and the parties relegated to the prior position under the original kanom deed by reason of the failure of the decree-holder to execute that decree. The decree declares what reduced kanom amount is admissible, what proportionate enhanced michavaram is payable and what the renewal fees should be for that and future renewals. It is fallacious to argue that because a deed was not taken in accordance with the decree there can be no renewal in accordance with its terms. A decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy between them in the suit. The decree must, therefore, be held to be conclusively determining the rights of the parties with regard to all matters relating to the kanom which includes the terms and conditions subject to which a renewal may be taken at any future date. The light of renewal is a periodically recurring right which by reason of the statute arises at periodic intervals of twelve years. Section 26, Cochin Tenancy Act (xv [15] of 1113) provides that it shall be obligatory on the part of the landlord to give and the kanom tenant to accept a renewal of the tenancy at the expiry of twelve years from the date of the last demise and, thereafter, at the end of every successive period of twelve years. The non-execution of a decree for recovery of renewal fees and other jenmi dues can be a bar only to the recovery of the amounts decreed for that renewal, but in so far as it determines under what terms and conditions the future relationship is to continue, it is only declaratory in both form and substance. The special Appellant''s contention that a registered deed granted and taken in pursuance to the decree could alone have made the decree effectual is equally without any force. That a registered instrument is not the only mode of creating a renewal is clear from Section 19. Under that section, registered instruments are necessary only for kanom created after the Act came into force, but a renewal can be affected either by a registered instrument or by decree of Court. Section 30 further illustrates it. Where a renewal takes effect by force of the decree all previous relationship would become merged in the decree and their future relationship will be regulated by the terms of that decree only, unless of course the decree is superseded by any fresh agreement between the parties evidenced by a registered instrument as required by the statute. There is no plea that there has been any agreement of that kind. Exhibit A decree must, therefore, be deemed to govern the mutual rights and obligations of the parties until varied for reasons mentioned in the Act and in one or other of the modes as prescribed by the Act. I agree with my learned brother that the special appeal should be dismissed with costs.