Karunakara Menon and Others vs The Secretary of State for India in Council

The plaintiff obtained a decree for possession of the suit land against Marakarut Veerankutty''s son Cheriya on the basis of a Kanom Kychit.

When she attempted to take possession, she was resisted by the village officials on behalf of the Government. She then put in M.P. No. 150 of

1906 making the Secretary of State for India the counter-petitioner and asked that the property might be put in her possession, removing the

obstruction of the counter-petitioner. The District Munsif, holding that there was evidence that the Government was in possession, directed u/s 331

of the CPC that the claim should be numbered and registered as a suit between the decree-holder as plaintiff and the Government as defendant.

The written statement put in on behalf of the defendant alleged that the land in dispute was a portion of a public Thodu belonging to Government

which was filled up and converted into paddy land, that the land was assessed and a pattah granted in Fasli 1304 to Veerankutti father of the 2nd

defendant in the suit in which the plaintiff obtained that which she was seeking to execute, on jenmabhogam assessment which had been collected

ever since. Now Section 331 of the Code of Civil Procedure, 1882, only applies where the resistance or obstruction has been occasioned by a

person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person

other than the Judgment-debtor. The question then arises whether the defendant is such a person. All that the defendant relies upon is the fact that

in the patta granted to Veerankutti, a charge is made for jenmabhogam in addition to the assessment and it is argued from this that the defendant,

though not in actual possession was in constructive possession of the land. We are unable to accede to this contention. We think that when the

defendant granted patta for the land, he ceased to have possession of any kind whatsoever. In Pullanapally Sankaran Nambudri v. Vittil Thalakat

Muhamad I. L. R. (1905) M. 505, the circumstances were very similar. There land which had been at the absolute disposal of Government was

held by a person who paid to Government assessment and jenmabhogam and cess as in the present case. It was held that he was holding as a ryot

under Government and that he was entitled to hold the land as long as he paid the revenue and in default could only be averted under the provision

of Act II of 1864. We think that the fact that part of what the Pattadar has to pay is called jenmabhogam can make no difference. We, therefore,

do not think the defendant was entitled to come in u/s 331 of the CPC or any other claim section of the code, and the claim should not have been

numbered and registered as a suit but should have been rejected. We must, therefore, set side the decrees of the courts below and the order of the

District Muusif directing the claim to be registered as a suit. The District Munsiff should take up M.P. No. 150 of 19 06 and dispose of it

according to law. Objection has been taken by the Government Pleader to our disposing of the second appeal on this point on the ground that it

should have been taken earlier and that all the isues have been determined by the courts below. No good purpose would be served by our going

into the issues raised in the suit. Even if we found that the defendant was the jenmi of the land, the right of the plaintiff to possession under the

decree against the pattadar would not be affected as the defendant is not entitled to any sort of possession. If we found the question of jenmi right

for the plaintiff, we could not pass a decree for possession against the defendant as the defendant is not in possession. We, therefore, think the only

satisfactory course is to deal with the point and correct the error into which the Distinct Munsif fell. The parties will bear their own costs

throughout.