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Thirumalasseri Kottayil Sreedharan Valia Rajah Styled Churaran of Iswaramangalam Amsham Vs. Parakkat Alias Karuthedath Alias Parapalli Alias Kandarath Illath Karnavan and Manager Kunhunni Alias Narayanan Nambudripad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in71Ind.Cas.279; (1921)41MLJ525
AppellantThirumalasseri Kottayil Sreedharan Valia Rajah Styled Churaran of Iswaramangalam Amsham
RespondentParakkat Alias Karuthedath Alias Parapalli Alias Kandarath Illath Karnavan and Manager Kunhunni Alia
Cases ReferredWeldon v. Neal
Excerpt:
.....particular case but has. it therefore follows that at the date of the 'amendment the defendant could have set up a plea of limitation which would have held good as against the denial of the forfeiture alleged by the plaintiff under ex......follows:- 'there is here no denial by matter of record before the present suit; was instituted. ' denial in the suit will not work a forfeiture of which advantage can be taken in that suit, because the forfeiture must have accrued before the suit was instituted.' so that on the materials dealt with, by the lower appellate court, the dismissal of the suit, was perfectly correct.8. it is urged here however that there was evidence, and that evidence is to be found in the admission made in paragraphs 7 and 8 of the written statement of defendants 1 and 2. 'in those paragraphs the defendants set up that they had demised items nos. 1 and 2 on kanom right as far back as 1865, renewed them in 1888 and that ever since that date, those items 1 and 2 have been enjoyed as the jenm of the illom of.....
Judgment:

Napier, J.

1. The appeal arises out of a suit by the plaintiff to redeem a kanom. That was the original from of the suit although it is true that in his plaint he claimed to also recover the land on -the strength of title.

2. The defendants pleaded that they were Anubhavam tenants to the knowledge of the plaintiff.

3. In the course of the trial the plaintiff applied to, the District Munsif for leave to amend his plaint by accepting the position that the defendants were Anubhavam tenants and claiming his right to recover the property on the ground that his title as jenmi has been denied by the defendant, which denial operated as forfeiture.

4. The first court had, declined to grant the amendment. On appeal, the Subordinate Judge allowed the amendment but he allowed it on very narrow grounds which are to be found at the bottom of page 28. He said By the amendment sought to be made, plaintiff only wanted to make his position clean There was no change in the nature of the suit. Even without any specific allegation about forfeiture in the plaint the plaintiff would have been entitled to argue that in the strength of his title he was entitled to get a decree for possession inasmuch as the defendants have forfeited their right to hold the properties' In my opinion this is not a correct description of the nature of the amendment sought by the plaintiff. I do not think he only sought to make clear his orginal position. I am satisfied that finding that he could not prove his kanom he sought leave to bring the suit on the true footing that defendants were Anubhavam tenants.

5. In the order in which he gave leave to amend, the lower appellate Court however refused leave to call any further evidence, and in disposing of the appeal, the lower appellate court has found that he had not proved every thing that is necessary for the purpose of establishing his right to forfeit. What was necessary has been laid down by a Bench of this Court, to which I was a party and it is the judgment in that ease on which the Subordinate Judge relies. That was the decision in Kemalooti v. Muhamed 34 M.L.J. 170. The requirement laid down in that case which the lower appellate court has found not to be satisfied, is stated in the headnote to be. that the denial must be made to the knowledge of the landlord. This decision has been attacked by learned Counsel on the ground that it was something new, and, that no case has ever laid down that before. I believe that it is true: that that the proposition had never been stated so definitely before and that was the reason why my learned brother; and 1 thought it necessary to state the whole law and all the requirements carefully, It ha? however been followed in a judgment of another Bench. That is a case reported in Raman Nair v. Mariyamma 43 M. 480 Seshagiri Iyer, J. said, 'It is well understood in this Presidency that the denial must be brought home to the knowledge of the landlord and it must be unequivocal and clear, and added that in Kema-looti v. Muhamed 34 M.L.J. 170 and in another ease this principle was distinctly stated. In my opinion, this must, as the learned Judges say, be now taken to be undisputed law in this country.'

6. That being so, we have to consider whether there had been such a communication as to come within the statute. In the lower appellate court the vakil for the appellant relied on a certain document, Ex. J, which was a grant of jenrn right of two items of this estate by the person who now claims to be only an Anubhavam tonant. That this does operate as ka unequivocal denial cannot be denied: but when it came to the necessity of showing that this had been brought to the notice of the landholder prior to the suit, the appellant was unable to do this.

7. That the requirements must all be satisfied before the institution of the suit is definitely stated in a judgment of their Lordships of the Privy Council in Maharajah, of Jeypore v. Rnkmani Pattamaha Devi I.L.R. (1919) Mad. 589 . Their Lordships say as follows:- 'There is here no denial by matter of record before the present suit; was instituted. ' Denial in the suit will not work a forfeiture of which advantage can be taken in that suit, because the forfeiture must have accrued before the suit was instituted.' So that on the materials dealt with, by the lower appellate court, the dismissal of the suit, was perfectly correct.

8. It is urged here however that there was evidence, and that evidence is to be found in the admission made in paragraphs 7 and 8 of the written statement of defendants 1 and 2. 'In those paragraphs the defendants set up that they had demised items Nos. 1 and 2 on Kanom right as far back as 1865, renewed them in 1888 and that ever since that date, those items 1 and 2 have been enjoyed as the jenm of the illom of these defendants with the knowledge of the plaintiff and others. Mr. Menon has contended strenuously here that, this being are admission in the pleadings, it is evidence of the notice having been given at a date prior to the institution of the suit arid that he is entitled to rely on it. The answer to this to my mind, is to be found in the doctrine that admissions must be taken either altogether or not at all, that is to say that although a party Cannot by an admission make evidence for himself, still if it is sought to use an admission against him, all the words of the admission1 must be taken and even if they operate in favour of the defendant, they must be taken with the words which the person seeking to rely on the admission calls to his aid. Now this is an admission doubtless but it is more: it is an allegation that the plaintiff has been under notice of the claim of the defendants since. 1865 and that therefore his suit would 'be barred by limitation. The result to my mind is this that the plaintiff cannot rely on this, admission alone without accepting the position that his suit is barred. On this short ground are prepared ;to hold that there is no material on which the court could decide that 'notice of the claim had come to the knowledge of the landlord notice of the claim such as would entitle him to claim the benefit pf, the forfeiture:

9. Another point taken by the defendants, is that the tenure now conceded to be Anubhavam cannot be forfeited for denial of title. It is true that there is a decision of two learned judges of this Court in S.A. No. 687 of 1915. Coutts-Trotter, J. took the view that there had been previous decisions with regard to a certain service tenure which were sufficient to cover all forms of permanent lease. Srinivasa Iyengar, J. seems, as far as I can understand, to raise a very much larger point that there can be no forfeiture of any permanent lease. With regard to this latter point we have however the distinct ruling of the Privy Council in Abhiram Goswanii v. Shyarha Charan, Mandal (1909) I.L.R. 36 Cal. 1003 Charan Nandi (1909) I.L.R. 36 Cal. 1003 that no such doctrine, is known to India. The other limited proposition in respect of that particular Malabar tenure that there can be no forfeiture for denial of title is not distinctly negatived in any particular case but has. certainly been doubted. If it was necessary for the disposal of this case to decide this important question, I would, speaking for myself, certainly desire to refer the matter to a Full Bench and so I do not desire to express any Personal opinion on the subject. As it is I prefer to dismiss the appeal for the reasons stated. The Second Appeal is dismissed with costs.

Odgers, J.

10. I entirely agree with the order proposed by my learned brother. I would only add a word on the subject of the amendment which was allowed by the Lower: Appellate Court. The amendment was applied for on the 6th December 1917 and was granted on the 8th February 1919, the application having been dismissed by the District Munsif. It therefore follows that at the date of the ' amendment the defendant could have set up a plea of limitation which would have held good as against the denial of the forfeiture alleged by the plaintiff under Ex. J, dated 1904. Although no doubt, Order VI, Rule 17 of the Code of Civil Procedure is very wide and allows all such amendments be made in such a manner and on such terms as may be just, still it seems to me that wide as the latitude is, there must be some limit. In this connection I would refer to the ease Kumara Venkata Peruntal v. Velayuda Reddi (1914) 27 M.L.J. 5 a decision of Wallis, J. (as he then was) and Sada-siva Aiyar, J, Wallis, J following the English case of Weldon v. Neal 19 Q.B.D. 394 in which the court of Appeal laid down that a plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the issue of the writ have become barred by the statute of Limitations. This as I have said, is followed, in the case cited, by Wallis, J. who said 'with great respect it does not seep to me to be just to allow a plaintiff by amending his pleadings to revive a barred claim.' Sadasiva Aiyar, J went further and was inclined to give the courts full power to amend pleadings at any stage so as to advance substantial justice without much regard to {he consideration whether the judgment debtor or the defendant may not be prejudiced in his right to raise technical pleas, though be admitted that the courts must also possess a discretion not to allow such amendment under particular circumstances. It seems to me when it comes to an amendment of this character in an appellate court it ought not to have been allowed. What was the character, of this amendment? The plaintiff by his plaint claims (a) redemption and (b) the surrender by the defendant to the plaintiff on the strength of the demise of the admission of the plaintiff's own Jenm title. By the amendment, it appears to me that the cause of action was materially changed in that it allowed the plaintiff to set up a forfeiture with regard to anubhavam or perpetual lease. It is I think clear in the original plaint there was no mention of this question of Anubhavam, but that by allowing the amendment of the claim in the plaint was not Only extended but also substantially altered. In any case the amendment to my mind prevented the defendant from setting up the plea of limitation which he was otherwise entitled to do, and therefore the order on that ground alone ought to have been disallowed.

11. With regard to the other questions raised in this appeal I agree with my learned brother, and the Second Appeal must be dismissed with costs.


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