V.P. Gopalan Nambiyar, J.
1. Defendants 2 and 3 are the appellants in this second appeal. The suit was for arrears of jenmikaram and renewal fee for the period from 1956 December to 1964 January. It is unnecessary to detail the facts giving rise to the suit or to this second appeal, as Counsel for the appellant very fairly stated before me that the merits of the appeal were concluded against him by an earlier decision on similar facts is Second Appeal No. 731 of 1967, which he made no attempt to attack or distinguish. Following the same, this second appeal must fail on the merits.
2. The only contention that was urged by Counsel for the appellant was that this second appeal is liable to be stayed under Section 4 of the Kerala Cultivators and Tenants (Temporary Protection) Act 1970 (Act 20 of 1970). That it is so liable to be stayed, if the suit relates to recovery of arrears of rent, seems clear enough; and the contention was, that jenmikaram is 'rent' as defined by the Kerala Act I of 1964 as amended. But a look at the relevant provisions of the concerned Acts, is sufficient to repel this contention. Section 2, Clause (13) of the Kanam Tenancy Act defines jenmikaram as follows:--
'2. (13). 'Jenmikaram' in respect of a holding or any land comprised in a holding means the amount payable in respect of that holding or land under the provisions of this Act by the Kanam tenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding, or land and shall be the sum total of the michavaram and the fractional fee.
Explanation. Payment of or the liability to pay jenmikaram is equivalent to paying or the liability to pay the michavaram renewal fees and puravaka dues'. Section 3 of the said Act states that from and after the commencement of the Act, the jenmi shall not have any right, claim, or interest in any land in a holding except the right to receive the Jenmikaram thereon and the kanam-tenant shall be deemed to be the owner of the land subject only to the payment of the Jenmikaram.
3. Turning now to the Kerala Land Reforms Act (Act I of 1964) it is significant that the definition of the term 'kanam' in Section 2, clause (22) of the Act, expressly exempts by a proviso, kanam or any other demise governed by the Kanam Tenancy Act, from its scope. Section 2, Clause (49) defines the term 'rent' as what is lawfully payable in money or in kind, by a person permitted to have the use and occupation of any land to the one so permitted, and includes mischavaram. (I have omitted the unnecessary words in the definition). It is plain from the provisions of the Kanam Tenancy Act, which I have detailed earlier, that jenmikaram cannot be regarded as consideration paid by the kanamdar for any permission to occupy the land to the person who so permitted such occupation. The definition of the term 'jenmikaram' itself makes it clear that it is a payment in lieu pf all claims of the jonmi; and the provision in Section 3 further makes it clear that the kanam tenant shall be deemed to be the owner of the land.
4. In Commr. of Agricultural Income-tax v. K. S. Narayanan Tratan Nambudiripad, (1965 Ker LT 913), the question arose whether jenmikaram was agricultural income for the purpose of assessment, under the provisions of the Kerala Agricultural Income-tax Act. The Division Bench observed:--
'After the passing of the Jenmi and Kudiyan Act the jenmi ceased to be the owner of the land. His only right is to get the jenmikaram. This he cannot collect directly from the Kudiyan. The Kudiyan is to pay this to the Government and there is a charge on the property for the jenmikaram. The jenmi-karams had to be paid by the kudiyan irrespective of whether the land was cultivated or not and Irrespective of whether any income was derived from the land'.
It was held that jenmikaram payable by the kudiyan was not agricultural income.
5. In the light of the provisions of the statutes and the principles of law noticed above. I am of the view that jenmikaram is not rent and that this Second Appeal is therefore not liable to be stayed under Act 20 of 1970.
6. The Second Appeal is dismissed. No costs.