Travancore Devaswom Board vs Vanjippuzha Chief and Others

N.V. Iyengar J

This appeal is by the fifth defendant. The Travancore Devaswom Board, against the judgment and decree in O. S. NO 6 of 1951 on the file of the District Court of Mavelikkara, whereby the plaintiff, Vanjipuzha Chief, obtained declaration inter alia that the property scheduled to the plaint appertained to his Edavagai and not to the Thrikkannapurathu Devaswom, represented by the appellant Board. The suit, property is a plot of garden land 1 acre 20 cents in extent and bearing S. No. 137/2 of Pandanattu Pakuthy, Thiruvella Tkluk, and known as Vadyarmadathil Purayidom. It was demised along with other items on kanom under Ex. A dated 7-9-1056 by the Vanjipuzha Matom in favor of Thommi Varki, the ancestor of defendants 1 to 3. Ex. B is the ozhugu form prepared in connection with the settlement and it mentioned the Vanjipuzha Pandarathil to be the registered holder according to the ozhuku of 1012 and the Ayakattu of the same year, but went on to describe the tenure of the property as " Thrikkannapurathu Thevarvaka Thettom." In the patta enquiry, Varki Oommen the son of Thommi Varki was confronted by the settlement authorities with the possible existence of the ownership of the property in the Devaswom, as following from the above description of the tenure but he refused to take derivative title from the Devaswom and insisted on taking patta as kanom tenant under Ex. A and patta was accordingly issued in his favor on 2-10-1080 in respect of the plaint and other properties. See copy of Ex. D settlement enquiry. register. In or about 1110 however the Thrikkannapuram Devaswom which had by then been assumed by the Travancore Government applied for and obtained settlement of jenmikaram in their favor in respect of the plaint property by Ex. II decision, of 23-8-1110. The defendants 1 to 3, who were in possession of the plaint property as heirs of Thommi Varki, took advantage of this settlement arid failed to pay the Vanjipuzha Matom its dues under Ex. A kanom. The Matom therefore filed O. S. No. 8 of 1118 on the file of the Changanachery Munsiff''s Court against the tenants for declaration of title and for recovery of jenmikaram as herein. But because the Thrikkannapurathu Devaswom was not also impleaded as directed, the court dismissed the suit by Ex. E judgment dated 19-4-1124 corresponding to 4-12-1948 but without prejudice to the plaintiff''s right to file fresh suit in proper form and hence this suit which was laid on 25-1-1951. The plaint averred that cause of action for the suit arose only in 1946 when, apparently during the course of Ex. E suit, the plaintiff got to know of Ex. II jenmikaram settlement decision in favor of the Devaswom. The fourth defendant was impleaded as person in possession under defendants 1 to 3. The suit was contested by the defendants 3 and 4 and also by the 5th defendant mainly on the question of title and limitation, but the pleas were repelled by the court below and the suit was decreed in terms of the plaint subject only to a small reduction in the rate of jenmikaram due. Hence this appeal by the fifth defendant as above said.

The first question raised by learned counsel for the fifth defendant appellant, is that the plaintiff has not established his title to the plaint property. According to learned counsel the description of the tenure of the property as Thrikkannapurathu Thevarvaka Thettom in Ex. B ozhugu clearly denoted that the property was held under derivative tenure from the Devaswom and there was. therefore nothing wrong in the Devaswom having applied for and obtained jenmikaram decision Ex. II in their favor. The case of the fifth defendant before the court below was that the ancestor of defendants 1 to 4 and after him these defendants had been enjoying the property under kanom arrangement from the Devaswom discharging their liability for the michavaram and other dues in the usual course and that defendants 1 to 4 continued to pay the jenmikaram dues as settled under Ex. II. But no document of kanom nor any thandaper evidencing receipt of michavaram or jenmikaram was filed in court on behalf of the fifth defendant, though D. W. 1 the present manager of the Devaswom undertook to produce the thandaper the next hearing day. It is curious that Ex. II decision obtained by the fifth defendant mentions one Kesavan Oonnithan as the tenant in possession under the Devaswom, but who this person is, D: W. 1 is riot even aware of. At any rate it does not contain any mention of the defendants 1 to 4 as the kanom tenants of the Devaswom as how claimed. The defendants 1 to 3 are, on the other hand, the descendants of Thommi Varki referred to in Ex. A kanom by the Chief and in Ex. D settlement enquiry. The only circumstance in favor of the Devaswom is the mention of the tenure as Thrikkannapurathu Thevarvaka Thettom in Ex. B ozhugu and the doubt raised on basis thereof as to title at the time of settlement but that after all is in no way decisive. Raman Menon, C. J., dealing with the expression '' Thettam '' in August v. The Dewan of. Travancore, 8 T. L. J. 438, at pages 443 and 444 observed :

In S. A. 17 of 1074, this court remarked:-''In the Sirkar registry of 1011, the plaint property is entered as ''Thettom'' in the name of defendants'' Tarwad. That expression, according to its ordinary meaning, implies at least a mortgage lien, if not more, as held by this court in A. S. 166 of 1070 and A. S. 285 of 1071. It always implies something more than a simple lease In S. A. 61 of 1075, the term was taken to be generic and to include '' all subordinate tenures falling short of the full proprietary title.'' In S. A. 302 of 1075, it was observed that the word ''Thettom'', as applied to Nambudiri Jenmies, had been held by this court to mean ordinarily a kanom. In S. A. 48 of 1076, Vencoba Chariar, C. J., and Mr. Justice Kunhiraman Nair construed the words thus:- '' The chief ground of the plaintiff''s second appeal is that in arriving at this finding the lower courts have not given sufficient weight to the fact appearing from the Exhibit B-an old revenue account-in which the land ''in dispute is entered as ''Thettom'' from plaintiff''s illom; but the word ''Thettom'' is a somewhat ambiguous one and though as remarked in the case in 15 T. L. R. 161 and in other cases, it is generally used in the revenue accounts to signify the kanom tenure under jenmies, it is also sometimes used to denote other subordinate tenures''. In S. A. 343 of 1078, we find the following remarks:-''Thettom ordinarily means a ''kanom'', and in any case, a derivative title when used in connection with Brahmaswam or Devaswom properties, as in the present case''. Lastly in A. S. Nos. 59 and 101 of 1083, Sadasiva Iyer, C. J,, and Sankara Menon, J., observed thus: ''Mr. Kochukrishna Marar quotes 15 T. L. R. 161 and says that the word ''Thettom'' means a kanom or mortgage. No doubt, in the case of jenmies, it has been so held; but we doubt whether in the case of non-jenmies, any meaning other than the ordinary meaning of the word can be given to the word ''Thettom''. The plaintiffs are Nairs and the tenure claimed is not jenmom. The ordinary meaning of the word is acquisition. We are inclined to hold that the word ''Thettom'', in cases of this sort, means only sale''.

The above decision was referred to with approval, to hold that the ordinary meaning of the word ''Thettom'' is acquisition. See Sreedharan Moosad v. Narayana Iyer (28 T. L. J. 510). We are here dealing with an Edavagai Chief who held a principality independent or quasi-independent until the conquest and consolidation of the State in the 18th century. There is no reason therefore to think that the expression ''Thettom'' in Ex. B ozhuku, assuming it to be a correct description meant anything other than ''acquisition''. It follows therefore that the fifth defendant had not made out any title in the Devaswom so far as the plaint property is concerned and the finding of the court below on this matter is perfectly right.

Learned counsel next said that the suit must be held to be barred; by limitation because, the settlement decision in Ex. II was on 23-8-1110 and the suit for declaration was filed on 25-1-1951, more than 12 years later. According to learned counsel, the period of limitation was either 12 years under Article 131 or 6 years under (O. P. No. 15 of 1956 (E) Decided on 11th December 1956.) Article 120, both periods commencing from Ex. II date and in such view the suit was out of time. The court below got over the difficulty by saying that the 12 year rule applied but the suit must be taken to be a continuation of the earlier suit O. S. No. 8 of 1118 filed within 12 years, for Ex. E. judgment of dismissal in that case had proceeded on wrong ground of non-joinder of parties. This attempt of the court below to get over limitation is certainly wrong. But the assumption of learned counsel that the terminus a quo, whether you apply the 12 year rule under Article 131 or 6 years rule under Article 120, is obviously unjustifiable. For, to constitute a refusal within the meaning of Article 131 there must be a definite demand and refusal and the mere fact that the plaintiff had, as in this case, not exercised his right is not enough. And similarly the starting point of limitation under Article 120 is the accrual of the right to sue and there is no right to sue until there is an infringement thereof or an unequivocal threat to infringe and you cannot place it here beyond 1118 in any event when the prior suit was filed. See for a full discussion of this topic in Varkey v Govindan, 1956 K. L. T. 427.

Learned counsel finally argued that Ex. A did not in fact evidence a kanom and therefore the question of jenmikaram settlement could not arise. But it seems to us that this argument is not available to the fifth defendant. The plaintiff''s rights as against his tenants was settled by the court below as on the basis of a kanom right and the tenants have acquiesced. So far as the fifth defendant is concerned, the question is only of rival ownership and that, we have found, amounts to nothing. Even otherwise, there is no reason to say that Ex. A is not in the nature of a real kanom as found by the court below. We repel this contention also. The appeal has no merit and it is dismissed with costs.