Research › Browse › Judgment

Kerala High Court · body

1971 DIGILAW 207 (KER)

SUBBIAH PILLAI v. GOPALA PILLAI

1971-08-19

P.NARAYANA PILLAI, T.C.RAGHAVAN

body1971
Judgment :- 1. In this appeal in execution, the second defend, ant (the judgment-debtor) is the appellant and the plaintiff the contesting first respondent. The first defendant, the second respondent in the appeal (who was removed from the party array at the instance of the appellant), took on lease in 1122 M. E. the property involved is the appeal consisting of two buildings and 64 cents of land agreeing to construct further buildings thereon with amounts advanced by the first respondent. The buildings had to be constructed within three months of the lease deed: and that stipulation was not complied with. There was another stipulation in the lease deed that the leasehold should not be assigned. Ignoring this latter stipulation, the lease-bold was assigned by the second respondent to the appellant in 1124. Then the first respondent filed a suit for evicting the appellant and the second respondent and obtained a decree too in 1958. The appellant took up the matter in appeal before Ibis Court and the appeal was dismissed. And then commenced execution proceedings; and in execution as well, the matter came to this Court twice before. 2. The first contention urged by the counsel of the appellant is that the appeal has to be stayed under S.3 of the Kerala Cultivators and Tenants (Temporary Protection) Act, 1970 (Act XX of 1970). In this connection, it is relevant to note the decision of this Court in Choyi v. Kunhiraman (1971 KLT. 563), wherein how Act XX of 1970 came to be passed and to whom all that Act applied have been considered. And it has been laid down that S.3 applies to tenants or persons coming within S.7 and 7B of Act I of 1964 as amended by Act 35 of 1969. Therefore, what we have to consider is whether the appellant will come within S.7 or 7B of Act I of 1964. 3. The counsel of the appellant has not made much of an attempt to establish that the appellant came within S.7 or 7B (1): his attempt has been to contend that the appellant came within S.7B(2). Therefore, what we have to consider is whether the appellant will come within S.7 or 7B of Act I of 1964. 3. The counsel of the appellant has not made much of an attempt to establish that the appellant came within S.7 or 7B (1): his attempt has been to contend that the appellant came within S.7B(2). We may observe that even this contention cannot be sustained (even if Act XX of 1970 applied to such a case), because S.7 B (2) relates to unregistered deeds purporting to be lease deeds-granted by persons who had no right over the land or who was not competent to lease the land. The argument before us is that the assignment by the second respondent to the appellant should be treated as a lease by the former to the latter and it should also be treated as a lease by a person who was not competent to grant such a lease. As we have already pointed out, the lease in favour of the second respondent prohibited an assignment of the leasehold to anybody. The deed of assignment is product before us; and it is a registered deed. The deed is not a deed purporting to be a lease: it is an assignment. Therefore, even if that deed was by a person who was not competent to grant a lease, S.7B (2) cannot apply to the case. It may also be noted that S.7 of Act XX of 1970 states in specific terms that nothing in the Act shall apply to any lease or tenancy exempted from the provisions of the Kerala Land Reforms Act by S.3 thereof about which more will be said hereinafter. For these reasons, the appeal is not liable to be stayed. 4. Now we come to the merits of the appeal. The counsel of the appellant contends that the appellant is a tenant under S.2 (57) of Act I of 1964. We need not consider whether the appellant comes within that definition: We proceed as if he is a tenant under S.2 (57). But by S.3 exemptions are provided; and the persons or lands exempted by S.3 do not get the protection under Chap.11 of the Act dealing with fixity of tenure. We need not consider whether the appellant comes within that definition: We proceed as if he is a tenant under S.2 (57). But by S.3 exemptions are provided; and the persons or lands exempted by S.3 do not get the protection under Chap.11 of the Act dealing with fixity of tenure. The case before us falls within clauses (ii) and (iii) of S.3 (1), viz., leases only of buildings, including houses, shops or warehouses, and the sites thereof with the lands, if any, appurtenant thereto and leases of lands or of buildings or of both specifically granted for industrial or commercial purposes. (S. 7 of Act XX of 1970 exempts such cases from S.3 thereof.) It may be recalled at this stage that the first respondent came to this Court on a previous occasion when the appellant claimed relief under S.106 of Act f of 1964 and the lower court allowed it. This Court held that the relief under S.106 was not available to the appellant, since the construction of the buildings by him was not lawful as it was against the stipulation in the lease deed. In other words, this Court held that S.106 would have otherwise applied to the appellant: this Court held that the lease was for the purpose of a hotel with provision for conducting open air dinner parties. This meant that the case came within S.3 of Act I of 1964 (vide Krishna Pillai Gopala Pillai v. Madhavan Pillai Subbiah Pillai (1970 KLT. 1025). Thus, this decision also precludes the appellant from claiming relief under the provisions of Act 1 of 1964 on the basis that he is a tenant as defined by S.2(57). Our conclusion otherwise is also the same. 5. The counsel of the appellant has then urged that this Court might give some time for removing the structures and fittings which the appellant was directed to remove. The lower court gave time till 3rd August 1971; and this Court granted stay till the 20th. Considering the nature of the structures and the fittings to be removed, we feel that some more time has to be given for removing them. And we allow the appellant to remove the structures and the fittings directed to be removed by him by the lower court on or before 5th September 1971 as directed by the lower court. Considering the nature of the structures and the fittings to be removed, we feel that some more time has to be given for removing them. And we allow the appellant to remove the structures and the fittings directed to be removed by him by the lower court on or before 5th September 1971 as directed by the lower court. With the aforesaid direction, the appeal is dismissed with costs. Carbon copies of this judgment will be given to the parties; and the records will be sent back without delay. Dismissed.