The Act gives the court discretion to order delivery of possession of a holding to the decree-holder if the court is satisfied that the lessee has committed intentional and willful acts of waste or has failed to pay the rent of the holding which has accrued due after the commencement of the Act.

Joseph Vithayathil, J.

These five appeals were heard together since common questions of law arise for consideration in these appeals.

S.A. No. 779 of 1950

The 2nd defendant in O.S. No. 1587 of 1119 of the Sherthallai Munsiff’s Court is the appellant in this Second Appeal. The appeal relates to an order in execution refusing to stay delivery of the decree schedule property under the Travancore Holdings (Stay of Execution Proceedings) Act (Act VIII of 1950). The decree is for recovery of possession of property on the basis of a document which, according to the plaintiff, is a mortgage, while according to the defendants, is a kanapattom. When the plaintiff applied for delivery of possession of the property the 1st defendant objected contending that Act VIII of 1950 applied to the case and that delivery of possession of the property should be stayed as provided in that Act. He also contended that the case would come within the purview of Act XXII of 1124 (The Travancore Prevention of Eviction Act). The execution court held that Act VIII of 1950 would not apply to the case, that the 1st defendant was not a kudikidappukaran coming within the purview of Act XXII of 1124 and therefore dismissed his petition and ordered delivery of the property. The appeal filed from this order was dismissed by the District Court. Hence this Second Appeal.

2. With regard to the contention that the case would come within the purview of Act XXII of 1124, it was not pressed by learned counsel for the appellant since the kudiyirippu has not been registered as required by the provisions of that Act. The only question to be decided in this Second Appeal is whether the decree in this case comes within the purview of Act VIII of 1950. The document which was the basis of the suit was not produced either in the execution Court or in the lower appellate court. These courts proceeded on the basis of the provisions of the document contained in the decree. The appellant produced in this court the document which is the basis of the suit and also two other documents relating to the property in dispute. The respondents also produced in this court some documents relating to the property. All the documents were admitted in evidence. The documents produced by the respondents were marked as Exts. A, B and C and those produced by the appellant as Exts. I, II and III. Ext. I dated 14.6.1074 is a venpattom deed executed by the uncle of the defendant’s mother in favour of the plaintiff’s family in respect of the decree schedule property. On 27.10.1083 the plaintiffs’ ancestor executed a pattapanayam, Ext.A in favour of the defendants’ mother. The lessees under Ext. I assigned their leasehold interest in favour of the defendants and their mother under Ext. II dated 13.11.1086. Subsequently the plaintiffs’ predecessor-in-interest executed a pattapanayam, Ext.III, on 17.2.1098 in favour of the defendants’ mother in renewal of Ext. A. The suit was brought on the basis of Ext. III for redeeming the property. The defendants contended that Ext. III created an irredeemable kanom and that therefore the suit for redemption was not maintainable. That contention was repelled by the trial court and the suit was decreed. The appeal filed from that decree was also dismissed.

3. It is argued for the respondents that the finding on the trial side that Ext. III is a redeemable mortgage and not an irrdeemable kanom is res judicata between the parties so far as the question in issue is concerned. We do not think that it is so. The question that was raised and considered on the trial side was whether Ext. III is a redeemable mortgage or an irredeemable kanom. The present contention of the defendants is that, although the demise under Ext. III is not an irredeemable kanom it is a redeemable kanapattom coming within the purview of S. 2 of Act VIII of 1950. The question that has to be decided in these proceedings is not whether the transaction evidenced by Ext. III is an irredeemable kanom or no