Thema and Another vs Kunhi Pathumma and Another

Seshagiri Ayyar, J.—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 kuzhikanam 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 Srinivasa Pillai Vs. Kannan by his mother and guardian Venkatammal and Others, . It is true that Section 5

of the Malabar Compensation Act does not in terms apply to South Kanara but as was pointed out in Kummatha Vittil Kunhi Kuthalai Haji v.

Reverend Antoni Goveus (1913) M.W.N. 339 that section only embodies the customary law of Malabar and South Kanara Consequently on the

expiry of the period fixed, the tenant does not become a trespasser. The decision in Subbraveti Ramiah v. Gundala Ramanna ILR (1910) Mad.

260 quoted by the Subordinate Judge has no application to Malabar kuzhikanam 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

moneys 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 Second Appeals 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 quandom 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 him to get the improvements re-valued, to 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 plaintiff for the rent reserved. This will be

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