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1957 DIGILAW 126 (KER)

Achutan v. Choyi

1957-06-06

SANKARAN

body1957
Judgment :- 1. This revision petition raises the question as to the exact nature and scope of the rights conferred on a tenant by S.52 of the Malabar Tenancy Act as amended by Act XXXIII of 1951. This question has been raised in an application filed under that section by the legal representatives of the 1st defendant in O. S. No. 309/1952 on the file of the District Munsiff's Court at Calicut. He was in possession and enjoyment of the suit properties on the strength of Ext. A2 dated 9-8-1929 which was described as a kaivasampanayam or possessory mortgage. The plaintiff in the suit, who had acquired the rights of the mortgagor, sued for recovery of possession of the properties on redemption of the mortgage. The defendant resisted the suit and contended that he was not liable to surrender possession of the properties. The definite stand taken up by him was that his possession was that of a cultivating verumpattomdar or of a kanamdar and not that of a mortgagee. This dispute formed the subject-matter of the first issue in the suit. These facts are borne out by Exts. A5, A6, and A8 which are respectively the certified copies of the plaint, the written statement and the trial court judgment. Regarding the nature of the demise under Ext. A2 the trial court repelled the 1st defendant's contentions and held that the document created only a possessory mortgage. Accordingly, a decree was passed in favour of the plaintiff for recovery of possession of the properties from the defendant on payment of the mortgage amount and the value of the improvements effected by the mortgagee. The 1st defendant took the matter in appeal to the Sub-Court at Calicut. During the pendency of that appeal he died and his legal representatives who are the present petitioners, were impleaded as additional appellants. The appeal went against them. They took the matter in second appeal to the Madras High Court where also the decree for redemption of Ext. A2 was confirmed. Exts. BI and B2 are copies of the judgments in these two appeals. Thus all the three courts concurred in the finding that Ext. A2 was only a possessory mortgage. In execution of the decree in that suit, the plaintiff obtained possession of the properties on 22-6-1950 and thus the decree was satisfied. A2 was confirmed. Exts. BI and B2 are copies of the judgments in these two appeals. Thus all the three courts concurred in the finding that Ext. A2 was only a possessory mortgage. In execution of the decree in that suit, the plaintiff obtained possession of the properties on 22-6-1950 and thus the decree was satisfied. Subsequently, the Malabar Tenancy Act was amended by the passing of Act XXXIII of 1951 and under S.52 of the Amended Act a special right was created in favour of a tenant to get back possession of the properties from a decree-holder under certain specified circumstances. The legal representatives of the 1st defendant wanted to take advantage of this section and accordingly they filed Execution Application No. 199/1953 praying for redelivery of the properties to them on payment to the decree-holder-plaintiff of all the amounts that may be found to be legally due to him. This application was opposed by the plaintiff on several grounds the most important of these being that the conditions prescribed by S.52 are not satisfied in the present instance and therefore the petitioners are not entitled to invoke the aid of that section. The lower court upheld this contention and dismissed the petition for re-delivery. The revision petition is directed against that order. 2. The question whether the petitioners are entitled to seek the aid of S.52 of Act XXXIII of 1951 has to be examined in the light of the conditions incorporated in the section itself. The section runs as follows "52 (1). The revision petition is directed against that order. 2. The question whether the petitioners are entitled to seek the aid of S.52 of Act XXXIII of 1951 has to be examined in the light of the conditions incorporated in the section itself. The section runs as follows "52 (1). Where before the commencement of this Act, a landlord in the District of Malabar has obtained possession of a holding in execution of a decree passed by a court on or after the 1st July 1942, under Clause.5 or Clause.6 of S.14 or under Clause.5 or Clause.6 of S.20 of the said Act and such decree would not have been passed if this Act had been in force at the time, the tenant shall be entitled to be restored to the possession of the holding with all the rights and subject to all the liabilities of a tenant if he makes an application in that behalf to the court which passed the decree, within 12 months from the commencement of this Act: Provided that before such restoration is effected, the tenant shall be bound to return to the landlord (1) the value, if any, paid by the landlord to the tenant for his improvements (2) the kanartham, if any, and (3) the value of the improvements, if any, effected bonafide by the landlord between the date on which he obtained possession of the holding and the date on which possession thereof is restored to the tenant. (2) If a landlord has obtained possession of a holding in the circumstances specified in sub-section (1) and if at the time he obtained such possession there were intermediaries between him and the tenant, then the provisions of sub-section (2) of S.43 of the said act shall apply to such intermediaries as they apply "in relation to the intermediaries referred to in that sub-section. (3) Nothing contained in this section shall affect the rights of any bona fide transferee from the landlord" It is obvious that the section is intended to confer a special right on a tenant under certain special circumstances to the prejudice of the right which had already become vested in the landlord. Naturally therefore the section has to be very strictly construed and every one of the conditions incorporated therein must be proved to be satisfied before the relief contemplated can be granted to the tenant. 3. Naturally therefore the section has to be very strictly construed and every one of the conditions incorporated therein must be proved to be satisfied before the relief contemplated can be granted to the tenant. 3. The decree in the suit was passed after the first day of July 1942 as contemplated by clause (1) of S.52. It was in execution of that decree that the plaintiff obtained possession of the property from the defendants. The present application for re-delivery has been filed within 12 month, from the date on which Act XXXIII of 1951 came into force. So far the conditions laid down in S.52 have been satisfied. But it has still to be considered whether the relationship between the plaintiff and the defendants was one of landlord and tenant, whether what was delivered over to the plaintiff was a holding as defined in the Tenancy Act and whether such delivery of possession was made m execution of a decree passed under clause (5) or clause (6) of S.14 or under clause (5) or clause (6) of S.20 of the said Act. It is obvious that the reference to the 'said Act' is to the tenancy Act as it stood prior to the passing of the Amending Act XXXIII of 1951. Cls. (5) and )6) of S.14 of the earlier Act prescribe the conditions under which a suit for eviction of a cultivating verumpattomdar could be maintained. These conditions are: "(5) that at the end of an agricultural year the landlord needs the holding bonafide for the purpose of raising crops or other produce for his own maintenance or for that of any member of his family or tarwad or thavazhi who has a propriety and beneficial interest in the holding. "(6) that at the end of an agricultural year the landlord needs the holding or part thereof bona fide for the purpose of constructing a building for his own use or occupation or for that of any member of his family or tarwad or thavazhi who has a proprietory or beneficial interest in the holding" Similarly, Cls. (5) and (6) of S.20 of the earlier Act prescribe the conditions under which a suit for eviction of a customary verumpattomdar or kuzhikanamdar or kanamdar can be maintained by the landlord. (5) and (6) of S.20 of the earlier Act prescribe the conditions under which a suit for eviction of a customary verumpattomdar or kuzhikanamdar or kanamdar can be maintained by the landlord. These conditions are: "(5) that at period of the verumpattom, kanam or kuzhikanam, as the case may be, has expired and there has been no renewal and the landlord needs the holding bonafide for the purpose of raising crops or other produce for his own maintenance or for that of any member of his family or tarwad or thavazhi who has a propriety and beneficial interest in the holding. "(6) that at the period of the verumpattom, kanam or kuzhikanam, as the case may be, has expired and there has been no renewal and the landlord needs the holding or part thereof bonafide for the purpose of constructing a building for his own use or occupation or for that of any member of his family or tarwad or thavazhi who has a proprietory or beneficial interest in the holding" The question is whether the decree in the present suit had been passed under any of these clauses under S.14 and 20. The answer can only be in the Native The plaintiff had no case that the defendants in the case were cultivating verumpattomdars or kuzhikanamdars or customary verumpattomdars or luzhikanamdars or kanamdars. His definite case was that they were m possession under a possessory mortgage only. Naturally, therefore it was not necessary for him to claim recovery of possession of the properties under clause S or clause (6) of S.14 or of S.20. The 1st defendant in the case had set up a case that his possession must be deemed to be that of a cultivating verumpatomdar or of a kanamdar. It was after repelling such a contention and holding that he was in possession under a redeemable mortgage that the decree in the suit was passed in favour of the plaintiff. Even the present petitioners have not attempted to maintain that the decree was passed under clause (5) or clause (6) of S.14 or under clause (6) of S.20. But an attempt was made to make out that the decree was passed under clause (5) of S.20. Even this attempt has to fail. The argument advanced on behalf of the petitioners is that in the plaint copy of which has been marked as Ext. But an attempt was made to make out that the decree was passed under clause (5) of S.20. Even this attempt has to fail. The argument advanced on behalf of the petitioners is that in the plaint copy of which has been marked as Ext. A5, the plaintiff had alleged that the properties were required for his own bonafide cultivation. Such an averment by itself will not show that he was seeking recovery of possession of the properties from a cultivating verumpattomdar of kanamdar for his own bona fide cultivation. The statement that he required the properties for his own cultivation, was unnecessary and superfluous in view of his prayer for recovery of the properties on redemption of the plaint mortgage. Such a superfluous and unnecessary statement that his object was to cultivate the properties himself, could not alter the nature of the suit. Apart from this aspect, it is seen that the decree was not granted on the basis that the plaintiff required the properties for his own cultivation. No doubt, in Ext. A2, the judgment of the trial court a finding was recorded in favour of the plaintiff on this question also. All the same, the decree was essentially a decree for redemption of the mortgage. It is also seen that when the matter went up to the appellate courts the question whether the plaintiff required the properties for his own cultivation was not considered at all and recovery of possession was decreed only on the basis of the redemption of the mortgage. This is clear from Exts. BI and B2 which are copies of the judgments of the first and second appellate courts. Thus it is clear that the decree in the case was not passed under clause (5) or clause (6) of S.14 or of S.20 of the Tenancy Act as it stood prior to the passing of the Amending Act XXXIII of 1951. Such an essential condition required by S.52 of the Amending Act is not satisfied by the decree in the present suit and this in itself is a sufficient reason justifying the dismissal of the application for re-delivery filed by the present petitioners under S.52. defined in the Tenancy Act and whether the petitioners are entitled to reagitate this matter at this stage. defined in the Tenancy Act and whether the petitioners are entitled to reagitate this matter at this stage. In sub-section (i) of S.52 there occurs the following passage: "such decree would no have been passed ii this Act had been in force at the time". On the strength of the passage it is argued on behalf of the petitioners that it is open to them to agitate even at this time that under Ext. A2 a tenancy was created and that the tenants were holding the property as a cultivating verumpattomdar or a kanamdar. But it is obvious that the decree referred to in the passage quoted above is the same decree referred to in the earlier part of the section i. e., a decree for eviction passed under clause (5) or clause (6) of S.14 or of S.20 of the earlier Act. If such a decree had been passed and in execution of the decree the property had been delivered over to the landlord, it would have been open to the tenant to show that no such decree would have been passed if Act XXXIII of 1951 was in force at that time. The reason is obvious. Under Act XXXIII of 1951 drastic changes were made in S.14 and 20 of the earlier Act and fixity of tenure was granted to the cultivating verumpattomdars and kanamdars subject to certain essential conditions. As already stated, the decree in the present suit was not passed under clause (5) or clause (6) of S.14 or of S.20 and hence the question whether such a decree would have been passed if Act XXXIII of 1951 was in force at that time does not and cannot arise for consideration. 5. The next provision relied on by the petitioner's learned counsel is the provision contained in S.22 of Act XXXIII of 1951. 5. The next provision relied on by the petitioner's learned counsel is the provision contained in S.22 of Act XXXIII of 1951. That section is in the following terms: "22 (1) Notwithstanding anything in the Indian Evidence Act, 1872, or in any other law for the time being in force, any person interested in any land may plead, adduce evidence and prove that a transaction entered into on or after the 1st January 1916 and purporting to be a mortgage of that land, is not in fact a mortgage, but a transaction by way of kanam, kanam-kuzhikanam, kuzhikanam, verumpattom or other lease, under which the transferee is entitled to fixity of tenure in accordance with the provisions of S.21. (2) Where under the last foregoing sub-section the Court holds that the transferee is entitled to fixity of tenure in accordance with the provisions of S.21, it shall be lawful for the Court to pass a decree containing directions regarding the application of the sum, if any, advanced to the landlord and making other suitable alteration in the terms recorded in the instrument executed by the parties". It is clear that the investigation permitted by sub-section (1) has to be done at the trial stage and before the decree is passed in the suit, because the decree has to be based on the result of such investigation. This is made further clear by sub-section (2) which states that it shall be lawful for the Court to pass a decree in accordance with the decision arrived at as a result of the investigation conducted under sub-section (1) even if the apparent tenor of the document may indicate otherwise. Sub-section (2) therefore controls sub-section (1) and the entire investigation under sub-section (1) has to be over before a-decree is passed under sub-section (2). In the present case there was an investigation as contemplated by sub-section (1) at the trial stage of the suit and the decree was passed as a result of such investigation. That decree having been already satisfied, is no longer in force and as such there is no scope for any further investigation and for the passing of another decree. Subsequent to Act XXXIII of 1951, the-Tenancy Act was further amended by Act VII of 1954. Sub-section (2) of S.25 of Act VII of 1954 may also be referred to in this connection. Subsequent to Act XXXIII of 1951, the-Tenancy Act was further amended by Act VII of 1954. Sub-section (2) of S.25 of Act VII of 1954 may also be referred to in this connection. That sub-section runs as follows: "All suits, appeals and other proceedings (other than proceedings in execution of a decree or order) which are pending at the commencement of this Act and in respect of the subject-matter of which the provisions of the Malabar Tenancy Act, 1929, are in force, shall from and after such commencement, be disposed of in accordance with the provisions of the Malabar Tenancy Act, 1929, as amended by Madras Act XXXIII of 1951 and this Act". It is clear from this provision that a decree already passed is unaffected by the passing of Act VII of 1954 and that only suits, appeals or other proceedings pending at the commencement of that Act have to be disposed of in accordance with the provisions of that Act. Sub-section (2) cannot be invoked in respect of the proceedings initiated by the petitioners by filing the execution application No. 1991953 for the obvious reason that such proceedings commenced only in the year 1953 and cannot be said to have been pending at the commencement of Act VII of 1954. Sub-section (3) of S.25 of Act VII of 1954 contains a provision enabling certain decrees to be amended so as to make them in conformity with the provisions of Act XXXIII of 1951. But this provision can be invoked only in cases where the execution of such decrees stood stayed as stated in sub-section (3). So far as the decree in the present suit is concerned execution had not been stayed and the decree itself had ceased to exist by its execution being complete. Thus the petitioners cannot invoke even the provision contained in sub-section (3) of S.25 of Act VII of 1954. The application filed by the petitioners under S.52 of Act XXXIII of 1951 is not sustainable in any view. The lower court's order dismissing that application does not, therefore, call for any interference. 6. In the result this revision petition is dismissed with costs.