Research › Browse › Judgment

Kerala High Court · body

1970 DIGILAW 15 (KER)

THOTI AMMA v. APPA ALIAS KRISHNA MENON

1970-01-16

M.U.ISAAC

body1970
Judgment :- 1. This appeal arises out of a suit for partition filed in 1936. Final decree for partition was passed on 1st December 1943; and under that decree, the legal representatives of the plaintiff who in the meanwhile had died, took possession of certain items of properties. The appellants before me took on karaima portions of the said properties from the legal representatives of the plaintiff in 1952 under registered deeds. Some of the defendants filed an appeal from the final decree. The appellate court modified the decree of the original court, as a result of which the properties allotted to the legal representatives of the plaintiff happened to be allotted to the share of defendants 2, 3, 7 and 8. Thereafter they filed an execution petition for delivery of the properties allotted to them: but delivery was resisted by the karaima holders in respect of properties in their possession. Defendants 2, 3, 7 and 8 then filed E. A. No.1 of 1959 in the District Court of Kozhikode, where the matter was then pending, to remove the obstruction and for being put in possession of the said properties in accordance with the final decree. The karaima holders contended that they were entitled to fixity of tenure, and at any rate, to value of improvements. The claim was put forward under the Malabar Tenancy Act, 1929, and the Kerala Land Reforms Act, 1963. It was upheld by the learned District Judge; but defendants 2, 3, 7 and 8 filed A. S.244 of 1960 from his decision. This Court, by judgment dated 22nd March 1965, held that the Karaima rights set up by the obstructors were vitiated by lis pendens, and they were not, therefore, entitled to fixity of tenure under any of the aforesaid Acts. The case was remanded to the lower court to decide the question whether the obstructors were entitled to value of improvements and if so how much. Accordingly, the case went back to the District Court. In the meanwhile, the Kerala Land Reforms Act, 1963 was amended by Act 5 of 1969. The obstructors availed of the provisions of the amending Act; and they contended that under S.2E thereof, they were entitled to fixity. The learned District Judge overruled that contention. Accordingly, the case went back to the District Court. In the meanwhile, the Kerala Land Reforms Act, 1963 was amended by Act 5 of 1969. The obstructors availed of the provisions of the amending Act; and they contended that under S.2E thereof, they were entitled to fixity. The learned District Judge overruled that contention. He also held that they were not entitled to any value of improvements in the light of the decision of this Court in Augusti v. Ramakrishna Panicker 1969 KLT. 326. The present appeal has been filed by respondents 3 to 8 in E. A. No.1 of 1959, who obstructed the delivery of the properties in favour of defendants 2, 3, 7 and 8. 2. The learned counsel for the appellants submitted that, in view of the clear protection available to his clients under S.7 of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969, they were entitled to fixity of tenure, and that it was therefore unnecessary to consider the other questions arising in this appeal. He also referred to Sub-section (3) of S.108 of Act 35 of 1969, which provides that all suits, applications, appeals, revisions, reviews proceedings in execution of decrees, and other proceedings with respect to any matter arising under and provided for by the principal Act pending before courts, tribunals, officers or other authorities at the commencement of this section shall be disposed of in accordance with the provisions of the principal Act, as amended by Act 35 of 1969. I am, therefore, bound to decide the matter in the light of the provisions contained in the amending Act. 3. S.7 reads as follows: "Notwithstanding anything to the contrary contained in S.52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969 of the land of another situate in Malabar shall be deemed to be a tenant if he or his predecessor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April 1957. Explanation. Explanation. Notwithstanding anything contained in the Indian Evidence Act, 1872 where a person has been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant." Admittedly, the appellants were in occupation of the lands concerned in this appeal at the commencement of Act 35 of 1969 and they have been in continuous occupation of the said lands for not less than two years within a period of twelve years immediately preceding the 11th day of April 1957. If they have been occupying the said lands honestly believing themselves as tenants, obviously S.7 is attracted. The learned counsel for the respondents contended that the possession of the appellants was not under any right created by persons having valid title to the property, and in the light of the decision of this Court in Narayan Nambiyar v. Raman Chettiar 1969 KLT. 449, the appellants cannot be said to be holding the lands honestly believing themselves to be tenants. The decision above referred to related to a lease by a person who was not competent to grant it. The position in the instant case is entirely different. The appellants got karaima rights from persons, who got the properties and who were enjoying them under a final decree for partition passed by a competent court. The only thing was that that decree was open to an appeal and liable to be set aside. That is what has precisely happened in this case. The title obtained by the appellants is therefore vitiated by lis pendens; but at the same time it cannot be said that the said leases were created by persons who had no rights in the property. The position is just the opposite; and the decision referred to above has no application to the present case. The vice of lis pendens is expressly saved by S.7 of the Act. The learned counsel for the respondents further contended that the question of fixity has been decided by this Court against the appellants in A. S.244 of 1960, and that they were not now entitled to raise that question in the present appeal. In support of that contention, he relied on the decision of this Court in Krishna Pillai v. State of Travancore 1967 KLT. In support of that contention, he relied on the decision of this Court in Krishna Pillai v. State of Travancore 1967 KLT. 188. He also contended that they were not entitled to any value of improvements in the light of the decision in Augusty v. Ramakrishna Panicker 1969 KLT. 326. I am unable to accept these contentions. The right now put forward by the appellants is one available to them under S.7 of the Kerala Land Reforms Act as amended by Act 35 of 1969. That right was created only with effect from 1st January 1970. None of the decisions referred to by the learned counsel for the respondents can possibly affect the said right. 4. In the result, I hold that the appellants are entitled to be deemed as tenants under S.7 of the Act. Accordingly this appeal is allowed, and the order appealed from is set aside. In the circumstances of the case the parties will bear their costs throughout.