Thema and Another vs Kunhi Pathuma and Another

The Subordinate Judge is wrong on both the points decided by him. There can be no question of adverse possession in favour of the defendant,

because under the customary law of Malabar, the Kuzhikanom lessee is entitled to remain in possession until he is paid the value of the

improvements.

In this respect, the law is the same in South Canara : Daramma v. Mariamma (1898) 24 M.L.J. 397. It is true that Section 5 of the Malabar

Compensation for Improvements Act does not in terms apply to South Canara but as was pointed out in Kummatha Vittil Kutti Kuthali v. Rev.

Antoni Goveas (1918) M.W.N. 339 that section only embodies the customary law of Malabar and South Canara. Consequently on the expiry of

the period fixed, the tenant does not become a trespasser. The decision in Subraveti Ramiah v. Gundala Ramanna ILR (1909) M. 260 quoted by

the Subordinate Judge has no application to Malabar Kuzhikanom tenants. We must therefore hold that the defendant has not acquired a title by

prescription.

On the question of the reasonableness of the notice to quit, we think that under the law, a tenant who remains on the land awaiting the payment

of the compensation to him is not holding over as a tenant. Section 5 of the Malabar Compensation Act says that he is entitled to remain on the

land, notwithstanding the fact that the tenancy has determined; therefore his possession is not by virtue of a tenant''s right, but because there are

monies due to him which have to be ascertained and paid. In the present case the period of lease was fixed, and on the expiry of that period, the

tenancy came to an end. We have not been referred to any evidence showing that the landlord assented to the continuance of the tenancy. Mr.

Madhavan Nair strongly relied upon a decision of this court in S.A. Nos. 771 to 773 of 1914. In that case it was found that the tenant made a

yearly payment. Moreover the period of the tenancy was not fixed. We do not think that decision compels us to hold that when a period is fixed

and there is no subsequent assent by the landlord, the quondam tenant is entitled to any notice.

Such suits should be regarded as practically suits for redemption. The court should on ascertaining the value of the improvements fix a time

within which the compensation will have to be paid and pass a decree directing surrender on the expiry of that period.

We reverse the decree of the lower Appellate Court, direct it to get the improvements re-valued, to a fix a time for payment and to pass a

decree for surrender on the expiry of that period. The tenant in possession is bound to give credit to the plaintiffs for the rent reserved. This will be

done in taking the accounts. Costs will abide the result.