Judgement

HIDAYATULLAH, J. : This is an appeal by certificate from the judgment of the High Court of Kerala, December 23, 1965, reversing the decree of the Sub-Court, Mavelikara. By the judgment and decree under appeal the suit of the first respondent, Rev. Father K. C. Alexander (shortly the plaintiff) was decreed in respect of the suit lands of which he had sought possession from the appellant, Nair Service Society Ltd. (shortly the Society or the first defendant) and some others who are shown as respondents 2 to 6. The facts in this appeal are as follows :

2. The plaintiff filed a suit in forma pauperis on October 13, 1942 against the Society, its Kariasthan (Manager) and four others for possession of 131.23 acres of land from Survey Nos. 780/1 and 780/2 of Rannipakuthy in the former State of Travancore and for mesne profits past and future with compensation for waste. The suit lands are shown as L (1) on a map Ex. L prepared by Commissioners in CMA 206 of 1110 M E. and proved by P. W 10. The two Survey Nos. are admittedly Government Poramboke lands. The plaintiff claimed to be in possession of these lands for over 70 years. In the year 1100 M. E. a Poramboke case for evicting him from an area shown as L (2) measuring 173.38 acres, but described in the present suit variously as 160, 191 And 165 acres, was started under the Travancore Land Conservancy Regulation IV of 1094 M. E (L. C case No 112/1100 M. E.) by Pathanamathitta Taluk Cutchery. This land is conveniently described as 160 acres and has been so referred to by the High Court and the Sub-Court. The plaintiff was fined under the Regulations and was evicted from the 160 acres. The Society applied for Kuthakapattom lease of this area on August 11, 1938. The lease was granted but has not been produced in the case. It was for 165 acres and the Society was admittedly put in possession of it on July 24, 1939 or thereabouts. The lease was for 12 years. Plaintiffs case was that on 13/16 October l939 a number of persons acting on behalf of the Society trespassed upon and took possession of the suit lands (131.23 acres) in addition to the 160 acres. The plaintiff, therefore, claimed possession of the excess land from the Society, its Manager and defendants 3 to 6, who were acting on behalf of the Society. The plaintiff also claimed mesne profits and compensation for waste.

3. The Society contended that the plaint lands were Government Reserve and that the plaintiff was dispossessed by Government from these lands when he was dispossessed of the 160 acres. The suit land is in two parts. Ex L. shows these two parts as L (1) (a) and L (1) (b). The Society had applied for another Kuthakapattom lease in respect of L (1) (b) and obtained it during the pendency of the suit on March 10, 1948. In this Kuthakapattom, which is Ex. 1, the land is shown as 256.13 acres and the leave is made without limit of time. Simultaneously a demand was made from the Society for arrears of Pattom at the same rate as for the Kuthakapattom in respect of the whole land after setting off the amount already paid by the Society. The Society in its written statement did not aver that it was not in possession of L (1) (a) and resisted the suit in regard to the entire suit lands. Subsequently it attempted by argument to limit its defence to L (1) (b) which was additionally granted to it in the Kuthakapattom Ex. 1. Although the suit pended for 17 years in the Sub-Court no application for amendment was made. The Society asked for amendments several times, the last being on October 15, 1958. However, on the last day of hearing of the appeal in the High Court (December 14. 1965) the Society applied for an amendment of the written statement limiting its defence to portion L (1) (b) disclaiming all interest in portion L (1) (a) and attempted to plead the grant of the second Kuthakapattom in its favour on March 10, 1948 The High Court rejected this application by its Judgment under appeal and awarded possession against th