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Kuniyil Chandu Vs. Mathiledath Sankaran and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1940Mad56
AppellantKuniyil Chandu
RespondentMathiledath Sankaran and anr.
Cases ReferredBaul Chandra v. Nistarini Debi
Excerpt:
.....of the trial court as to respondent 1 having quarried stones from the paramba contrary to the terms of the kychit held that after the enactment of section 20. malabar tenancy act, a kanamdar could not be evicted except on one of the grounds specified therein, and as no such ground was made out by the appellant his suit failed. 3. it seems to me that the terms of the section quite clearly prohibit any suit being brought for eviction of a kanamdar except on any of the grounds specified therein quite irrespective of any contract or bargain between the parties and this conclusion is reinforced by an examination of the object underlying the act and of the provisions of sections 16, 17, 18 and 22. the act deliberately sets out: a and the present suit was bound to fail if section 17..........learned counsel has conceded that no decree could be passed for eviction in this suit if the respondent would be entitled to get a renewal. but he asserts that defendant 1 is not so entitled, as the paramba in question is dry land as denned by the act. there is however no evidence in the case to show whether the land is dry land or garden land though it is agreed that it is not wet land and the point has not been considered by the courts below. i do not think that this question can be properly decided on the materials now on record. nor is it necessary to do so, in view of my decisions on the other point. the appeal is dismissed with costs. (leave granted.)
Judgment:

Patanjali Sastri, J.

1. The plaintiff has preferred this appeal against the decree of the Subordinate Judge of South Malabar at Calicut dismissing his suit for redemption and recovery of a paramba with arrears of rent according to the terms of a kana kychit executed on 31st May 1927 by respondent 1 in his favour. It was provided in the kychit marked as Ex. A in the case that if the kanamdar, i.e., respondent 1, kept the rent in arrears or did any act prejudicial to the appellant or if he quarried stones-from the plot without the appellant's written consent thereto respondent 1 should on demand by the appellant, surrender, the plot to him without raising any dispute or any plea with reference to the stipulated, term, of 12 years on receiving the kanam amount the value of the kuzhikur chamayams as estimated then and the fee for the unexpired period of the term. The appellant's case was that respondent 1 quarried stones from the plot in question without his written consent and that he was therefore entitled to demand the surrender of the plot according to the terms of the kychit set out above even before the expiry of the terms fixed. Respondent 1 denied that he quarried any stones from the plot and pleaded inter alia that, in any cases, by virtue of the provisions of the Malabar, Tenancy Act, 24 of 1930, the appellant had no right to recover the property before the expiry of the term. The trial Court found; that respondent 1 did quarry stones from, the paramba contrary to the terms of the kychit, Ex. A and was therefore bound to surrender the plot as stipulated in Ex. A. He accordingly passed a decree for redemption and recovery of the paramba on the plaintiff depositing the kanam and other amounts as provided in the kychit. There was no discussion of the provisions of the Malabar Tenancy Act invoked by respondent 1 in bar of the suit. On appeal the learned Subordinate Judge while confirming the finding of the trial Court as to respondent 1 having quarried stones from the paramba contrary to the terms of the Kychit held that after the enactment of Section 20. Malabar Tenancy Act, a kanamdar could not be evicted except on one of the grounds specified therein, and as no such ground was made out by the appellant his suit failed.

2. The learned Counsel for the appellant has conceded before me that none of the grounds specified in Section 20, Malabar Tenancy Act, exists in this case and that no claim, for eviction under that Section can be sustained. But he contends that the kychit Ex. A having been executed long before the Malabar Tenancy Act was passed the appellant's right to evict respondent 1 must be determined with reference to the terms of the kychit and such right cannot be controlled or affected by Section 20 of the Act. I am unable to accept this contention. Section 20 of the Act enacts:

No suit for eviction of a customary verumpattamdar, kuzhikanamdar or kanamdar shall lie at the instance of the landlord except on the following grounds, etc.

3. It seems to me that the terms of the Section quite clearly prohibit any suit being brought for eviction of a kanamdar except on any of the grounds specified therein quite irrespective of any contract or bargain between the parties and this conclusion is reinforced by an examination of the object underlying the Act and of the provisions of Sections 16, 17, 18 and 22. The Act deliberately sets out:

to alter and amend the law relating to landlord and tenant in the District of Malabar to the extent, in the manner and for the purposes hereinafter appearing,

and it is clear that it was intended to supersede the customary and contractual rights, liabilities and incidents pertaining to the various forms of land tenure prevailing in the district to the extent to which such rights, liabilities and incidents run counter to the provisions enacted therein. Sections 16, 17 and 18, for example, confer a right of renewal on a customary verumpattamdar, a kanamdar and kuzhikanamdar respectively on the expiry of the veerumpatam, kanam and kuzhikanam as the case may be and specify the renewal fee payable in each case by the tenant. Though there are no words in these Sections to show that the provisions are intended to control and override bargains between the parties, the terms of Section 22(1) make it clear that that was the intention of the Legislature. To my mind, the opening words of Section 22(1), namely 'notwithstanding any contract to the contrary, whether made before or after the commencement of the Act,' could have more appropriately found place in Sections 16, 17 and 18 as these are the provisions that confer the new rights, while Section 22 only prescribes the procedure for the enforcement of those rights. However that may be, reading these four Sections' together, I am clear that the Legislature intended that stipulations between the parties made either before or after the Act contrary to these provisions should be superseded. Indeed, the appellant's learned Counsel conceded that the respondents would be entitled to have the kanam renewed notwithstanding the terms of Ex. A and the present suit was bound to fail if Section 17 applied to this case, but he urged that it was inapplicable because the paramba in question is a dry land and is excepted as such from the operation of that Section by Clause c(ii) thereof. But apart from the question whether the suit paramba falls within the exception or not, I am referring, in this connexion, to the concession of the appellant's learned Counsel as to the effect of Section 17, to show that, Section 20 being one of the same fasciculus of Sections must be understood as part of the same scheme of statutory supersession of stipulations between the parties which are inconsistent with those provisions.

4. The learned Counsel for the appellant stressed the absence of words in Section 20 similar to the opening words of Section 22(1). Having regard to the fact that Section 20 is couched in the language of absolute prohibition, it might perhaps have been supposed that it was unnecessary to insert a similar clause in that Section. However that may be, reading Sections 16, 17, 18 and 22 with Section 20, Clauses (3), (5) and (6), it is clear to my mind that no eviction can take place unless the statutary right of obtaining a renewal has not been availed of on the expiry of the term, and if ex concesso, the right to obtain such renewal cannot be controlled by a contract made before the Act, the disability to sue for eviction if such a renewal is obtained cannot also be controlled by such a contract. The learned Counsel for the appellant placed reliance upon the decision of this Court in Murakasim Rowther v. Pouikes A.I.R. (1915) Mad. 93 on Section 151, Madras Estates Land Act, which is somewhat analogous to Section 20, Malabar Tenancy Act. It was held in that case that a contract made before the passing of that Act between a landlord and a tenant, authorizing the latter to use the holding in a manner which might impair the value of the land for agricultural purposes was not rendered inoperative by that Section read with Clause (g) of Section 187. Section 151, Madras Estates Land Act, enacts that a landholder may institute a suit before the Collector to eject a ryot from his holding

only on the ground that the ryot has materially impaired the value of the holding for agricultural purposes and rendered it substantially unfit for such purposes,

and Section 187(g) lays down that

nothing in any contract between a landholder and a ryot made before or after passing of the Act shall entitle a landholder to eject a ryot otherwise than in accordance with the provisions of this Act.

5. It is argued that these provisions are closely analogous to the provisions of Section 20, Malabar Tenancy Act, and that therefore a similar conclusion must be reached in this case. I cannot accede to this contention. That Section 151, Madras Estates Land Act, is somewhat analogous to Section 20, Malabar Tenancy Act, may be granted. But the ground of decision in that case was that Section 151 was only intended to restrict the right of the landlord to eject a ryot by limiting it to the ground mentioned in that provision. That being so, it was held, there was nothing in that Section to preclude the enforcement of a contract which had the effect of restricting still further the landlord's right to eject. In other words, the contract that was allowed to be enforced in that case was not one inconsistent with Section 151 which was clearly enacted to protect the tenant. The decision therefore does not support the appellant's contention. The learned Counsel referred me also to Baul Chandra v. Nistarini Debi (1906) 83 Cal. 136 which turned on the construction of Section 178, Ben. Ten. Act. It was there held that a contract between a landlord and his tenant made before the passing of the Act did not fall within the prohibitory terms of Sub-section (3), Clause (a) of that Section as it purported to affect only contracts made 'after the passing of this Act.' I cannot see how this decision assists the appellant.

6. For all the above reasons I am of opinion that Section 20 of the Act bars the appellant's suit for eviction. The learned Counsel for the respondents has also urged that apart from the plea based on Section 20 of the Act, in decree can be passed for the eviction of respondent 1 as the latter will under Section 17 be entitled to obtain a renewal of the kanam notwithstanding the terms of the kychit,. Ex. A. As I have stated before, the appellant's learned Counsel has conceded that no decree could be passed for eviction in this suit if the respondent would be entitled to get a renewal. But he asserts that defendant 1 is not so entitled, as the paramba in question is dry land as denned by the Act. There is however no evidence in the case to show whether the land is dry land or garden land though it is agreed that it is not wet land and the point has not been considered by the Courts below. I do not think that this question can be properly decided on the materials now on record. Nor is it necessary to do so, in view of my decisions on the other point. The appeal is dismissed with costs. (Leave granted.)


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