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1979 DIGILAW 92 (KER)

SOSAMMA v. SREEDHARAN

1979-03-30

K.K.NARENDRAN

body1979
Judgment :- 1. The application in O. A. No. 418 of 1970, an application for resumption under S.16A of the Kerala Land Reforms Act,1 of 1964, for short the Act, on the file of the Land Tribunal, Cannannore is the petitioner in this Civil Revision Petition. The petitioner approached the Land Tribunal under S.16A of the Act for resumption. The application was filed on 29-6-1970. The petitioner's case is that the father of respondents 1 to 6 who died on 14-5-1970 was having lands in his possession more than the ceiling area on 1-1-1970. The respondents opposed the application and one of the grounds taken by them was that they were not in possession of lands in excess of the ceiling limit. The Land Tribunal by order dated 29-3-1974 held that the petitioner is a small holder but dismissed the application. According to the Land Tribunal, none of respondents 1 to 6 were having lands in excess of the ceiling limit and since their father was dead on the date of the application it was their ceiling limits that has to be taken into consideration to allow resumption. The petitioner challenged the above order of the Land Tribunal before the Appellate Authority (Land Reforms), Kozhikode. The Appellate Authority accepted the petitioner's contention that the question whether the tenant from whom resumption is sought was in possession of more than the ceiling area has to be decided on the basis of the state of affairs that stood as on 1-1-1970. But the Appellate Authority dismissed the appeal on the ground that the father of respondents 1 to 6 was having only less than 15 ordinary acres and hence no resumption is possible. The above judgment of the Appellate Authority is challenged by the petitioner in this Civil Revision Petition. 2. S. I6A of the Kerala Land Reforms Act 1 of 1964 reads: "16. The above judgment of the Appellate Authority is challenged by the petitioner in this Civil Revision Petition. 2. S. I6A of the Kerala Land Reforms Act 1 of 1964 reads: "16. Resumption by small holder from tenants holding more than the ceiling area:.- (I) Notwithstanding anything contained in S.17 or S.18, a small holder (other than a sthanee or the trustee or owner of a place of public religious worship) may resume from his tenant, who is in possession of land exceeding the ceiling area, the whole or a portion of the holding, subject to the condition that by such resumption the total extent of land in the possession of the cultivating tenant is not reduced below the ceiling area and the total extent of land in the possession of the small holder is not raised above five acres: Explanation II to S.16 of the Act reads: "Explanation II.-The provisions of S.82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of this section and S.16A, provided that if no date has been notified under S.83, the date of the application for resumption shall be deemed to be the date notified under S.83." Section 2(8) of the Act reads: "2(8) 'cultivating tenant' means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding." Section 2(17) of the Act reads: "2 (17) 'holding' means a parcel or parcels of land held under a single transaction by a tenant from a landlord and shall include any portion of a holding as above defined which the landlord and the tenant have agreed or are bound to treat as a separate holding." Section 2(57) of the Act reads: "2(57) 'tenant' means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes (a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration; ' ............... As per Explanation II to S.16 of the Act the calculation of the ceiling area for the purposes of resumption is to be made as on 1-1-1970, the date notified under S.83 of the Act and only if no date has been notified, it has to be made as on the date of the application for resumption. On 1-1-1970, admittedly the tenant who was none other than the father of respondents I to 6 was alive. So, it is his ceiling area which has to be fixed and only if there is any excess land the question of resumption arises. For the purposes of fixing the ceiling limit the death of the tenant if it is after 1-1-1970, has to be ignored. Not only that, by the mere death of a tenant the holding does not split up. This is clear from the definition of holding in S.2 (17) and Explanation I therein. As per S.2(57) which defines 'tenant', a tenant includes the heir, assignee or legal representative of the tenant. So, by the mere fact that on the death of the tenant his heirs, respondents 1 to 6, are in possession of the holding, there cannot be any change in the ceiling limit that has to be fixed for the purposes of resumption. This is all the more so as the crucial date is 1-1-1970 and by the death of the tenant thereafter the holding does not get split-up. So, it is immaterial whether any of or all the respondents I to 6 is or are having lands below the ceiling limit applicable to them. If the father of respondents 1 to 6, the tenant of the holding, on 1-1-1970 was having land in excess of the ceiling limit applicable to him, resumption is possible. 3. It is not in dispute that the ceiling limit applicable to the deceased tenant is 10 standard acres. The right to hold 10 standard acres is subject to the condition that it should not be less than 12 ordinary acres and more than 15 ordinary acres. The Appellate Authority has not adverted to this aspect of the matter. What is to be ascertained is whether the deceased tenant was having more than the extent fixed under S.81(1) (b) of the Act which is the ceiling limit applicable to his family. The Appellate Authority has not adverted to this aspect of the matter. What is to be ascertained is whether the deceased tenant was having more than the extent fixed under S.81(1) (b) of the Act which is the ceiling limit applicable to his family. If there is anything in excess of that, resumption cannot be refused to the petitioner. For the purposes of ascertaining whether the deceased tenant was having more than 10 standard acres as on 1-1-1970 the case has to go back to the Land Tribunal. Hence, I set aside the finding of the Appellate Authority that the petitioner is not entitled to resume any land from respondents 1 to 6, and remand the case to the Land Tribunal, Cannanore for ascertaining whether the deceased tenant (father of respondents 1 to 6) was having more than 10 standard acres on 1-1-1970. If he was having anything in excess of 10 standard acres (of course excluding lands entitled to be exempted under S.81), it goes without saying that the petitioner's application for resumption has to be allowed subject to the restrictions contained in S.16A of the Act. Of course, this is subject to the further condition that the actual extent should not be less than 12 acres and not more than 15 acres depending upon the classification of the lands. 4. The Civil Revision Petition is allowed as above. There will be no order as to costs. Allowed.