Venkatasubba Rao, J.
1. In this Letters Patent Appeal from the judgment of King J., two questions of law have been argued. In 1889, the suit property was leased by the then jenmi to the defendant's ancestor for a period of three years. While the tenant was in occupation, the jenmi granted a melcharath in 1913. Having previously terminated the lease, the jenmi as the 1st plaintiff and the melcharathdar, as the 2nd, brought in 1915 a suit in ejectment against the tenant. In the plaint, was made the allegation, that it was the melcharathdar that was both entitled to the property and liable to pay the value of the improvements. On that basis, it was prayed that a decree should be passed, directing possession to be delivered to the melcharathdar on his depositing the amount due. Thus, it will be seen that the jenmi, although he joined in the suit as the first plaintiff, prayed for no relief in his own favour and made it clear that he was not to be made liable for the amount payable to the lessee. A decree in the suit was passed in 1916, which directed possession to be delivered to the melcharathdar, on his depositing a certain amount, for payment to the tenant. This decree, however, was not executed.and the tenant continued to remain in possession. The present suit was brought to eject him in 1929 by the successor of the jenmi who granted the lease. King, J., confirmed the decree passed by the lower appellate Court in favour of the plaintiff.
2. Two questions have been raised: first of limitation and secondly of res judicata. As regards the first point, Mr. Nambiar contends that the suit is barred under Article 139 of the Limitation Act, which applies to actions by landlords against tenants. The starting point is the determination of the tenancy and the suit must be brought within 12 years. If this provision applies, there can be no doubt that the suit is barred. But it is contended for the respondent that under the special law of Malabar, this general provision must be deemed to have been abrogated by Section 5 of Madras Act I of 1900 (The Malabar Compensation for Tenants' Improvements Act). It enacts (to quote the material portion) that every tenant to whom compensation is due shall, notwithstanding the determination of the tenancy, be entitled to remain in possession until ejectment in execution of a decree or order of Court. Then sub-clause (2) of the same section goes on to say, that a tenant so continuing in possession shall during such continuance, hold as a tenant subject to the terms of his lease. This section enacts a contradiction; it says that although the tenancy is determined, the tenant continues in possession as such subject to the terms of his lease. There is some force in Mr. Nambiar's contention that this provision was not intended to over-ride the general law, as it had been enacted merely to protect the tenant's right where compensation has not yet been paid. He seeks support for his contention in the definition of the word 'tenant' in Section 3 and the detailed provisions of Section 6. Whatever the merit of this contention be, a contrary view has been taken in every reported case, and we do not think it right to unsettle the law on a point such as this: see Kummatta Vittil Kunhikutti Haji v. Reverend Antoni Gower : (1913)24MLJ472 , Eroma Menon v. Sankunni Menon (1936) 2 M.W.N. 324, Chowakkaran Keloth v. Karuvalote Parkum (1914) 29 I.C. 559. Mr. Nambiar relies upon Thema v. Kunhi Pathuma (1917) 34 M.L.J. 128 : I.L.R. 41 Mad. 118 but the judgment will show, if carefully read, that the tenant's contention was negatived there, namely, that he acquired title by adverse possession by continuing in possession for 12 years. from the termination of his tenancy. This case therefore, so far as the decision goes, does not support Mr. Nambiar.
3. Then as to res judicata, true, as Mr. Nambiar contends, the theory of a nominal or pro forma plaintiff is untenable. A plaintiff unlike a defendant comes voluntarily on the record and although the law knows of a pro forma defendant, the idea of a pro forma plaintiff is repugnant to it. But still it seems to us that the learned Counsel's argument as to res judicata cannot prevail. First, were there a previous decree in favour of the jenmi, that might constitute res judicata and prevent a second decree being passed; but there is no such previous decree. There was an outstanding melcharath, and under its terms, no decree could have been passed in favour of the jenmi. There was no duty cast on the jenmi to recover possession for the melcharathdar and for that purpose, to file a suit. Moreover, no question was raised as between the jenmi and the tenant and there was no issue to be tried between them. The question of res judicata is one of substance and it is difficult in the circumstances to hold that there is an actual or constructive res judicata which bars the present action.
4. In the result, the Letters Patent Appeal fails. We make no order in regard to costs.