K. Ittinan v. Govindan Nambuduri

The 16th defendant is the appellant before us. The plaintiff brought this suit in ejectment treating defendants 1 to 12 as tenants under him from year to year whose tenancy had been determined by a notice to quit.

The appellant the 16th defendant claimed title as a tenant with rights of permanent occupancy, his case being (a) that the original Anubhavam tenant under the plaintiff jenmi mortgaged that Anubhavam right to the 14th defendant's predecessor in title, (b) that the right of redemption of that mortgage became barred by limitation before 1903, (c) that the 14th defendant thus acquired the Anubhavam right itself through the loss of the mortgagor's right to redeem (see Sect. 28 of the Limitation Act), and (d) that the plaintiff had no right to eject the 16th defendant claiming under the 14th defendant, both because the 16th defendant was an Anubhavam tenant and also because there was no notice to quit. The 16th defendant's principal written statement has not been sent with the records but its substance appears in the 5th paragraph of the District Munsif's judgment.

Both the Lower Courts found that the particular letting of 1853 set up by the plaintiff was false. The plaintiff's title as jenmi or full owner was however not denied by any of the defendants; the Anubhavam lease set up by the 16th defendant was again found to be not proved. The result of these findings then is, that the plaintiff is the landlord or owner of the land and the 16th defendant enjoyed the land as a tenant on the date of suit. The Lower Appellate Court at once says (see paragraph 15 of its judgment which paragraph consists of this single sentence): “It follows that the plaintiff is entitled to recover on title and I find accordingly”.

I must say that the Lower Appellate Court's judgment dealing with the facts is rather unsatisfactory. It relies upon entries in a ledger Ex. D which is not a contemporaneously kept account; the day book which (the plaintiff admits) is in existence and from which the entries were transferred to Ex. D has not been produced by the plaintiff. Its explanation on the specific allegation in the plaint that the rent is in arrears from 1901 whereas Ex. D contains entries letters, of payment of rent up to 1906 is lame. There is also important documentary evidence ignored by the Lower Appellate Court in its judgment which “throws great suspicion on Ex. D. However, I do not think that on these grounds this Court is entitled in Second Appeal to interfere with the Subordinate Judge's findings on the facts.

The Lower Appellate Court was evidently of opinion that a landlord could eject his tenant “on title” without going into the question of the nature of the lease and without a finding that the tenancy so found had been put an end to on the date of the suit. In this case (as I said before) the particular tenancy set up by the plaintiff was found to be false as also the Anubhavam tenure set up by the 16th defendant. But the Lower Appellate Court was still under the duty of finding whether the relationship of landlord and tenant had been terminated between the parties when the suit was brought.

I, however, do not think it necessary to remand the case for a finding on these questions. Thavasi Ammal v. K. Arumuga Nattar(1) held that where the nature of the tenancy is not proved, the tenancy of a house should be presumed to be a monthly one, under Sect. 106 of the Transfer of the Property Act. That case no doubt was a not case of agricultural tenancy to which class of tenancy the Transfer of Property Act does not apply (See Sect. 117 of the Act). It has been held, however, in this Court in N. S. Vasudeva Patrudu v. The Zamindar of Salur(2) that in the absence of any proof contra, the presumption even in the case of agricultural leases is one of tenancy from year to year. Of course, the authority of that case has been completely shaken so far as the tenants of zamindary lands and of zamindary Inam lands are concerned by later decisions, but I do not think that as regards agricultural tenancies in Malabar (if the tenants have no additional mortgage-rights as in kanom tenures) the presumption of a tenancy from year to year can be said to be inapplicable. (There are certain observations in the judgment in Veeranan Ambalam v. Annasawmi Aiyar(3) decided by Abdur Rahim and Sundara Aiyar, JJ., against the indiscriminate raising of such a presumption “in all cases of ryotwari lands” but the language is too cautious to afford any clear guidance. Whether the principle of Sect. 106 is applied though Sect. 106 itself may not be applicable (see the opinion of my learned brother Seshagiri Aiyar, J in Kemalutti v. Puthiakath Muhamad(4) or whether the English Law of Property should be resorted to and applied with the necessary modifications arising from the difference in the origin of tenures and the peculiarities of the tenures of this country (as laid down by my learned brother Napier, J. in that same case) I think the legal conclusion from the facts found is that the tenure in this case is a tenancy from year to year.

In the plaint, it was alleged, that the tenure had been terminated by a notice to quit and the District Munsif found accordingly relying on the registered notice Ex. B. It does not appear that the 16th defendant addressed any arguments before the Lower Appellate Court on the question of the fact, or necessity of a notice to quit or the validity of the notice B. In the memorandum of Second Appeal to this Court, the only ground relating to this point is that “the plaintiff's suit should have been dismissed for want of a notice to quit”. (8th ground). No other contention has been raised such as that even if there was a notice to quit, it was not a proper one or was not directed to the proper person. In Shah Wall Ahmad v. Hussaini Begum, it was held that where the defendant in a suit in ejectment did not raise in the Lower Appellate Court the point whether the notice to quit on which the plaintiff relied was legal and sufficient, the point could not be raised in Second Appeal in the High Court.

In the result, I would dismiss the Second Appeal but in the circumstances I would make no order as to costs.

Napier, J.—I agree.

.

K.V.SAppeal dismissed.