Valsala Kumari v. Beeyathumma — 1981 DIGILAW 350 (KER)

ORDER P.C. Balakrishna Menon, J. 1. Both the revision petitions arise out of proceedings for resumption of land under S.15 of the Kerala Land Reforms Act (hereinafter referred to as the Act) instituted by the three applicants in A. No. 3765 on the file of the Land Tribunal, Palghat. The 1st applicant is the landlord in respect of 7.19 acres of land held by the respondents on tenancy rights, under him. The 2nd applicant is the wife of the 1st applicant and the 3rd applicant is one among their daughters. This application had a chequered career. Both applicants 1 and 2 died during the pendency of the proceedings. The 1st applicant died on 1-1-1976 and his wife the 2nd applicant died earlier. The 3rd applicant and all the other children of applicants 1 and 2 were impleaded as the legal representatives of the deceased applicants 1 and 2. 2. The claim in the application is for resumption of 50 cents of land for the bona fide need of the applicants for the construction of a residential house for the occupation of themselves and the members of their family. It is specifically averred that neither the applicants nor the members of their family have any land in their possession nor do they have a house of their own for their occupation. Hence they have alleged bona fide need for the resumption of 50 cents of land out of the holding comprising of 7.19 acres of land in the possession of the respondents tenants. The bona fide need alleged was denied by the respondents and they also contended that the application is not maintainable in law. 3. By order dated 6-7-1966 the Land Tribunal allowed resumption of 50 cents of land in R.S. No. 3189, found fit for the construction of a residential building. The order of the Land Tribunal is on the basis of its finding that the applicants need the land for their bona fide purpose of constructing a residential building for the occupation of themselves and the members of their family. In appeal by the tenants, the appellate authority by order dated 10-12-1970 in A.A. 4470 confirmed the finding of the Land Tribunal that the applicants need the 50 cents of land from out of the holding comprising of 7.19 acres for the bona fide purpose of constructing a residential house for their occupation. In appeal by the tenants, the appellate authority by order dated 10-12-1970 in A.A. 4470 confirmed the finding of the Land Tribunal that the applicants need the 50 cents of land from out of the holding comprising of 7.19 acres for the bona fide purpose of constructing a residential house for their occupation. The case was however remanded to the Land Tribunal to be decided in accordance with the provisions of S.22 of the Act as amended by Act 351969. This order of remand by the Appellate Authority was confirmed by this Court in C.R.P. No. 873 of 1971. After remand, the Land Tribunal decided the case in accordance with S.22 of the Act as amended by Act 35 of 1969 and ordered resumption of 50 cents of land to be demarcated by the Tribunal itself. An option to locate the 50 cents of land to be resumed submitted by the tenants under sub-s.(4) of S.22 was not accepted by the Land Tribunal for the reason that the land opted for resumption by the tenants is unfit for the construction of a residential building. In appeal, by the tenants, the Appellate Authority in A.A. 181/1971 held that the tenant is entitled to an absolute right of option under sub-s.(4) of S.22 of the Act and hence the landlord is bound to accept the 50 cents of land offered for resumption by the tenant in spite of the fact that the land opted is a double crop wet land unfit for the construction of a residential building. In revision - C.R.P. No. 874 of 1972 this C Court by judgment dated 14-2-1972 set aside the orders of both the authorities below and remanded the case to the Land Tribunal for fresh disposal directing the Tribunal to determine and specify the particular area for resumption taking into consideration the relevant provisions of the Statute. 4. The finding as to the bona fide need of the landlord for resumption of 50 cents of land for the construction of a residential building for the occupation of himself and his family having become final the only question before the Land Tribunal was as to which portion of the holding can be permitted to be resumed under S.15 read with S.22 of the Act. The Land Tribunal took the view that the tenant has an absolute right of option to point out the land for resumption by virtue of the provisions of sub-s.(4) of S.22 of the Act and accordingly accepted his option for resumption of 50 cents of double crop wet land in Sy. No. 3171. It is not in dispute that Sy. No. 3171 is a double crop paddy land, without even a proper access, the only access being along a foot path running along the land of the neighbouring cultivators. The Tribunal fixed solatium for the land to be resumed by the tenant under S.20 of the Act at Rs. 1710/- and directed payment of the same within thirty days from the date of the order. This order of the Land Tribunal is confirmed in appeal by the appellate authority by order dated 15-1-1980 in A.A. 158/75. 5. C.R.P. No. 372 of 1980 is by the legal representatives of applicants 1 and 2 including also the 3rd applicant. C.R.P. No. 1261 of 1980 is by the tenants against the same order on the ground that the appellate authority should have dismissed the application for resumption for non compliance to the requirements of S.22(2) of the Act in not having deposited the solatium within the thirty days time allowed by he Land Tribunal. 6. One of the points raised by the learned Counsel for the tenants is that the conditional order of the Land Tribunal dated 9-1-1975 for resumption of 50 cents of double crop wet land on payment of solatium within one month of the date of the order has worked itself out and resumption has become impossible by virtue of the provisions of sub-s.(8) of S.22 of the Act. Sub-sections (2), (3) and (8) of S.22 are extracted below: "2. The Land Tribunal shall duly enquire into the application and pass appropriate orders thereon. Where the order allows resumption, it shall specify the extent and location of the land allowed to be resumed, the rent payable in respect of the portion, if any, that would be left after resumption and such other particulars as may be prescribed and directing the landlord to make, within such time and in such manner as may be prescribed, payments extinguish the rights of the cultivating tenant and the intermediaries, if any, who would be affected by such resumption. (3). (3). The Land Tribunal may for sufficient reasons, extend the time prescribed under sub-s.(2) for making payments by the landlord. XX XX XX XX XX (8). Where a landlord fails to deposit the amounts in accordance with the directions of the Land Tribunal, the order of resumption shall be treated as cancelled - and the landlord shall have no further right for resumption." 7. The argument is that R.11 of the Kerala Land Reforms Tenancy Rules requires the order of the Land Tribunal to specify the survey number, sub-division number etc. of the land allowed to be resumed, the extent of land that would be left after resumption and the value of improvements belonging to the cultivating tenant and the other persons, if any, interested in the land allowed to be resumed. Sub-rule (2) of R.11 requires that the order allowing resumption should specify the amount to be paid by the landlord resuming the land, and the persons to whom payments are to be made, and shall further direct that the amounts shall be deposited with the Land Tribunal within a period of thirty days from the date of the order, and on such deposit being made, the Land Tribunal shall pay the amounts to the parties and obtain receipts therefor. The order passed by the Land Tribunal on 9-1-1975 was in terms of R.11 requiring the deposit of the solatium to be made by the landlord within 30 days from the date of the order. No such deposit was made nor was there any application for extension of time under sub-s.(2) of S.22. An appeal was filed only on 18-4-1975 three months after the date of the order of the Land Tribunal. According to the learned Counsel for the tenants an order of stay of operation of the order of the Land Tribunal, passed by the Appellate Authority does not intercede the operation of sub-s.(8) of S.22 of the Act. 8. The argument of the learned Counsel Sri. Balasubramoniam is that for the non compliance to the requirements of sub-s.(2) of S.22, read with R.11 the provisions of sub-s.(8) of S.22 operate by its own force and hence the order for resumption passed by the Land Tribunal should be treated as cancelled and the landlords will have no further right of resumption. Balasubramoniam is that for the non compliance to the requirements of sub-s.(2) of S.22, read with R.11 the provisions of sub-s.(8) of S.22 operate by its own force and hence the order for resumption passed by the Land Tribunal should be treated as cancelled and the landlords will have no further right of resumption. The fact that the order of the Land Tribunal was appealed against and after the order was confirmed in appeal there is a further revision to this Court, according to the learned Counsel, does not make any difference in regard to the operation and applicability of sub-s.(8) of S.22 of the Act. In support of this contention, the learned Counsel refers to the decision of Bhaskaran J. in Yohannan v. Thomas reported in 1977 KLT 717 . There the question was whether the 30 days time fixed under R.11 is to be reckoned from the date of the order of the Land Tribunal or whether it can be reckoned from the date of disposal of a revision by the High Court under S.103 of the Act In Yohannan's case ( 1977 KLT 717 ), there was an order for resumption on payment of the amount fixed as due to the tenant within the time fixed by the order of the Land Tribunal. The order of the Land Tribunal was confirmed by the Appellate Authority and also in further revision by this Court. There was neither a stay of operation of the order for payment within the time allowed by the Land Tribunal during the pendency of the appeal and revision, nor was the order modified by the Appellate or Revisional Authority allowing a fresh period of time for payment of the amount due to the tenant. It was in this context that the learned Judge held that the time for payment is to be reckoned with reference to the date of the order of the Land Tribunal allowing resumption and not from the date of the appellate or revisional order, confirming the order for resumption passed by the Land Tribunal. It was again in that context that the learned Judge at page 722 stated as follows: "10. It was again in that context that the learned Judge at page 722 stated as follows: "10. ......Before the appellate authority as well as the revisional court disposed of the matter (confirming the order of the Tribunal in toto), the order of resumption stood cancelled, without being capable of being revived, by the operation of S.22(8) of the Act. It is doubtful whether even the appellate authority would have the power to grant time, or the grant of such time would be of any material consequence, when, in the meanwhile by operation of S.22(8) of the Act, the order passed under S.22(2) stood cancelled. It will not, however, be necessary here to consider such an extreme position as admittedly the Appellate Authority or the revisional authority did not interfere with the order of the Land Tribunal in any respect, including the time for deposit of the amount fixed in that order. In other words, when the order of the Land Tribunal got itself merged with the judgment of the Appellate Authority and the order of the revisional court, that includes the time for payment fixed thereunder, as the Appellate judgment or the revisional order gave no positive D indication that the time fixed for deposit of the amount by the Land Tribunal was deleted modified, or substituted by the Appellate Authority or the High Court. The position, therefore, is that when the Appellate Authority and the High Court confirmed the order of the Land Tribunal, it includes the time fixed for the deposit of the amount of compensation as fixed by the Tribunal, in the absence of an order by the Appellate Authority or the revisional court that the time fixed by the Land Tribunal has been superseded. This is particularly so in this case, as I am informed by the Counsel for the parties, that the operation of the order of the Land Tribunal was not stayed either by the Appellate Authority or by the High Court." 9. The learned Counsel for the landlord challenges the correctness of the decision in Yohannan's case ( 1977 KLT 717 ). It is not necessary for me to refer this case for decision by a Division Bench for the reason that the decision in 1977 KLT 717 does not apply to the facts of this case and it can easily be distinguished. It is not necessary for me to refer this case for decision by a Division Bench for the reason that the decision in 1977 KLT 717 does not apply to the facts of this case and it can easily be distinguished. The passage from the judgment quoted above, itself indicates that the Appellate and the Revisional Authorities have jurisdiction to extend the time fixed as per order of the Land Tribunal under sub-s.(2) of S.22 for payment of the amounts due under sub-s.(1) of S.20 of the Act. In the present case there was an order of stay of operation of the order of the Land Tribunal, pending the appeal, and the Appellate Authority as per its order had granted an extension of time for deposit by 30 days from the date of the appellate order. Before the expiry of that period the landlords have filed the present revision and had obtained a stay of operation of the order for depositing the amount as per the appellate order. The power to extend time was exercised by the Appellate Authority and if the order is to be confirmed, it is for this Court now to consider whether it is necessary to extend the period of time for deposit of the amount due under sub-s.(1) of S.20 of the Act. The learned Counsel for the tenants has a different argument in regard to the same question. It was by order dated 9-1-1975 that the Land Tribunal directed deposit of solatium due to the tenants in regard to the extent of land to be resumed within thirty days from the date of the order. The appeal itself was filed only on 18-4-1975, after the thirty days time had expired and hence by the force of sub-s.(8) of S.22 of the Act the order for resumption stands cancelled precluding the landlord from claiming any further right of resumption. In support of this proposition, the learned Counsel relies on the decision of Balagangadharan Nair J. in Theyyunni Nair v. Muhammed (1977 KLN 113). There the question was as to whether the Land Tribunal has jurisdiction under sub-s.(3) of S.22 to grant an C extension of time for deposit of the amounts due as per an order under sub-s.(2) of S.22 of the Act, directed to be deposited within the time fixed as per R.11(2) of the Kerala Land Reforms Tenancy Rules, 1970. There the question was as to whether the Land Tribunal has jurisdiction under sub-s.(3) of S.22 to grant an C extension of time for deposit of the amounts due as per an order under sub-s.(2) of S.22 of the Act, directed to be deposited within the time fixed as per R.11(2) of the Kerala Land Reforms Tenancy Rules, 1970. The learned Judge held: "To construe sub-s.(3) as clothing the Tribunal with the power to extend the time even after its expiry is to undo the consequences which sub-s.(8) has prescribed in mandatory terms. Still sub-s.(3) must have its field of operation. The only way in which the two sub-sections can be harmonised is to hold that after sub-s.(8) has worked itself out on the expiry of the thirty days fixed by R.11(2), the Tribunal has no power to extend the time by acting under sub-s.(3); in other words the power under sub-s.(3) must be invoked before the expiry of the period prescribed by R.14(2)." The only question in the case before the learned Judge was as to whether after the expiry of the period fixed for deposit of the amount, the Tribunal has jurisdiction to extend the time under sub-s.(3) of S.22 of the Act. It was not a case where the order of the Tribunal was itself under challenge. The argument of the learned Counsel for the tenants will have force if it is shown that the order of the Tribunal has become final and in such cases on the expiry of the period of time fixed for deposit for the amount due to the tenant the order for resumption would itself get cancelled by virtue of the provisions of sub-s.(8) of S.22. No authority is placed before me to show that the appeal before the Appellate Authority was not maintainable for the reason of failure on the part of the landlord to deposit the amount due to the tenants as per the order of the Land Tribunal impugned before the Appellate Authority. If the appeal and the revision are maintainable and in case the order of the Land Tribunal is itself set aside, there is nothing precluding the Appellate or the Revisional Authority from passing a fresh order in the proceedings for resumption in accordance with the provisions of the Act. If the appeal and the revision are maintainable and in case the order of the Land Tribunal is itself set aside, there is nothing precluding the Appellate or the Revisional Authority from passing a fresh order in the proceedings for resumption in accordance with the provisions of the Act. The learned Counsel for the landlord submits that compliance to the order of the Land Tribunal may itself in certain circumstances be an estoppel against the maintainability of the appeal against the order which had been complied with by the landlord. The order of the Land Tribunal in the present case directs deposit of Rs. 1710/- as solatium due to the tenant in respect of the 50 cents of double crop land opted by the tenant for resumption in accordance with the provisions of sub-s.(4) of S.22 of the Act. If on the merits of this revision I am to hold - as I shall presently show - that the order of the Land Tribunal for resumption of 50 cents of double crop a paddy land cannot be sustained, the entire order will have to be set aside and a fresh order will have to be passed in the proceedings for resumption in accordance with the provisions of S.15 and 22 of the Act. Once the order is found to be unsustainable in law, and is liable to be set aside there is no substance in the plea that the order is as good as cancelled, by virtue of the operation of sub-s.(8) of S.22 of the Act and hence the landlords are precluded from questioning the validity of the order in appropriate proceedings under the Act. The Act provides for no such bar against the maintainability of the appeal or revision. If the landlord succeeds in appeal or revision and the order itself is to be set aside the non compliance to such an order is of no consequence in the proceedings. Apart from this, if I am to hold that the land ordered for resumption is not fit for the purpose mentioned in S.15 and some other part of the holding is to be c resumed the solatium due to the tenant will not be the same as ordered by the Land Tribunal as per the impugned order. Apart from this, if I am to hold that the land ordered for resumption is not fit for the purpose mentioned in S.15 and some other part of the holding is to be c resumed the solatium due to the tenant will not be the same as ordered by the Land Tribunal as per the impugned order. It may be a different amount to be fixed as compensation or solatium due to the tenant in respect of that part of the holding to be resumed. For that reason also it cannot be said that the failure to deposit the amount fixed as solatium for the 50 cents of paddy land will forfeit the landlord's right to claim resumption of a different portion of the holding, in appeal before the Appellate Authority or in revision before this Court. An appeal under S.102 and a further revision under S.103 of the Act are the continuation of the same proceedings initiated by the landlord for resumption under S.15 of the Act. Once it is found that the order of the Land Tribunal is not sustainable in law it is open to this Court to direct resumption of a different portion of the holding in which case the compensation due to the tenant will have to be re-fixed and the same will have to be deposited by the landlord within the time allowed by law. If therefore it is to be found that the landlord is entitled to resumption of a portion of the holding different from what is allowed by the Land Tribunal, there is no question of forfeiture of the landlord's right for resumption under sub-s.(8) of S.22 of the Act for his failure to deposit the amount as per the impugned order of the Land Tribunal. 10. The main question raised by the learned Counsel for the landlords in C.R.P. No. 372 of 1980 is that the land ordered for resumption on the basis of the option submitted by the tenant under sub-s.(4) of S.22 of the Act is unsuitable for the purpose of construction of a residential building for the occupation of the applicants and the members of their family. S.15 provides for resumption of land not exceeding 20 cents or 50 cents as the case may be, by a landlord, who bona fide needs the land for the purpose of constructing of a building for his own residence or for that of any member or members of his family. In the application itself it is stated that the applicants and their family have no other land in their possession for the construction of a residential building. It is also specifically stated that they do not possess a residential building of their own. The requirement is of 50 cents for the residence of all the members of the family of the applicants. In the written statement filed by the tenants there is no denial of the averment that the applicants do not possess a residential house or land on which they could construct a residential building. Bona fide need for resumption if 50 cents of land for the construction of a residential building for the occupation of the applicants and the members of their family had been found in these proceedings and that finding has become final and binding on the parties on account of the decision of this Court in C.R.P. No. 873/1971 confirming the decision of the appellate authority in A.A.T. No. 44/1970. 11. The only other question is as to whether the tenant is entitled to insist on the landlord resuming 50 cents of land of the tenants' choice even if the land is unfit for the purpose mentioned in S.15 of the Act. The Land Tribunal as well as the Appellate Authority in the present case have held that the right of the tenant to opt for the portion of the holding" to be resumed by the landlord is absolute, and the landlord is bound to accept the tenants' choice by virtue of the provisions of sub-s.(4) of S.22 of the Act. I have no doubt in my mind that the decision of the statutory tribunals below is not correct in law and cannot be accepted on a proper construction of the relevant provisions of the Act. S.14 to 17 of the Act provide for resumption of land by the landlord on different grounds mentioned in these sections. As per S.18, resumption under any of these provisions of the Act shall be subject to the conditions mentioned therein. S.14 to 17 of the Act provide for resumption of land by the landlord on different grounds mentioned in these sections. As per S.18, resumption under any of these provisions of the Act shall be subject to the conditions mentioned therein. S.19 provides for resumption of agricultural lands interspersed within plantations. S.20 provides for compensation for improvements and solatium to be paid to the tenant from whom land is to be resumed. S.21 provides for the priority for resumption among the different types of the landlords mentioned therein. The procedure for resumption is as provided for in S.22 of the Act. As per sub-s.(4) of S.22 the cultivating tenant shall be entitled to opt for the location of the portion of the holding which will be allowed to be resumed by the landlord. There is no provision that the Land Tribunal ordering resumption is bound to accept the option relating to the portion of the holding to be resumed by the landlord. In the present case, the bona fide requirement found is for the construction of residential building for the occupation of the landlord and the members of his family. What the tenant has opted is for resumption of 50 cents of double crop paddy land without a proper access and in no sense can it be said that it is a land fit for the purpose for which resumption is sought and ordered by the statutory tribunals below. To hold that the Land Tribunal is bound to accept the option of the tenant for the location of the land to be resumed will be to render the provision for resumption of land for construction of a house for residential purpose meaningless and ineffective. Resumption of land under such circumstances can only be of such land as is capable of being applied to the use to which resumption is ordered. S.14 of the Act provides for resumption by a trustee or owner of a place of public religious worship of land in the possession of a tenant when it is needed for the purpose of extending the place of public religious worship. Resumption in such cases can only be that part of the holding which can be put to use for the purpose mentioned in S.14 of the Act. Resumption in such cases can only be that part of the holding which can be put to use for the purpose mentioned in S.14 of the Act. If the choice of the tenant is absolute it is open to the tenant to defeat the purpose of the Section itself, by pointing out a portion of the holding which will be of no use for the purpose of extending the place of public religious worship. It cannot therefore be said that if the choice by the tenant of the land for resumption is found to be unsuitable for the purpose for which resumption is ordered the Land Tribunal is bound to accept such choice. The mere fact that the tenant has a right to opt does not mean that an unreasonable option requires acceptance by the Land Tribunal. In the present case the option exercised by the tenant is most unreasonable. Out of the 7.19 acres of land in the holding, he has pointed out 50 cents of double crop paddy land for resumption by the landlord for the construction of a residential building for the occupation of himself and the members of his family. I have no doubt that the land to be resumed should be fit for the purpose for which resumption is ordered. Sub-s.(4) of S.22 cannot be understood as a provision enabling the tenant to defeat the purposes of S.14 and 15 of the Act. The tenant's option for the location of the portion of the holding to be resumed, if found opposed to the objects and purposes of S.14 or 15 of the Act under which resumption is to be allowed should be ignored as an option opposed to law and the location of the portion of the holding to be resumed is to be decided in accordance with the later part of sub-s.(4) of S.22 of the Act as in a case where the tenant had not exercised any option for resumption. On a harmonious construction of S.14, 15 and 22 of the Act, the only conclusion possible is that sub-s.(4) of S.22 confers a right to the tenant to opt for the location of the portion of holding to be resumed in such a way as not to defeat the objects and purposes of S.14 and 15 of the Act. 12. On a harmonious construction of S.14, 15 and 22 of the Act, the only conclusion possible is that sub-s.(4) of S.22 confers a right to the tenant to opt for the location of the portion of holding to be resumed in such a way as not to defeat the objects and purposes of S.14 and 15 of the Act. 12. The learned Counsel for the tenants submitted that the right of a landlord to resume a portion of the holding under S.15 of the Act is a personal right, that will not survive his death. I do not find much substance in this submission. The landlord's right in the property is heritable and alienable. Such right to property cannot be held to be personal and would become extinct on the death of the landlord. On devolution of the property on the legal representatives they become the landlords within the meaning of S.2(29) of the Act. In the present case resumption is sought for the construction of a residential building for the occupation of the three applicants and the members of their family. The members of the family are impleaded on the death of applicants 1 and 2. The 3rd applicant is even now alive. The bona fide need for the occupation of the applicants and the members of their family has been found and that finding has become final. It is not the case of the tenants that the members of the family have some other house or land fit for constructing a residential house for their occupation, Under these circumstances, I have no doubt that the 3rd applicant and the legal representative of the deceased applicants 1 and 2 are entitled to continue the proceedings for resumption of land for the construction of a residential building for their occupation. In the written statement filed by the tenants, they had no case that any of the members of the family of the applicants has any other house or land fit for erecting a residential house. There is a specific statement in the application that no member of the family has a residential house or land fit for erecting a residential building. There is no denial of this in the written statement of the tenants. The proceedings started as early as in 1965. Applicants 1 and 2 died during 1975-76. On their death their children were impleaded as their legal representatives. There is no denial of this in the written statement of the tenants. The proceedings started as early as in 1965. Applicants 1 and 2 died during 1975-76. On their death their children were impleaded as their legal representatives. There is no such point raised in the courts below that the proceedings abate on the death of the landlord or the legal representatives have other lands on which a house can be constructed. In the memorandum of revision in C.R.P. No. 1621 of 1980 filed by the tenants there is no specific point raised that the legal representatives have other lands on which they could construct a residential building, or that they have some other building for their residence. For the first time today when the case is part-heard an application is filed for permission to take an additional ground that there is no material on record to hold that the legal representatives have no residential house or land fit for erecting a residential house. Even in the application there is no averment that the legal representatives of the landlord have a house of their own or land on which they could build a house. This belated application to raise an additional ground without any material in support of it, at a time when the case is part-heard deserves only to be dismissed, and C I have accordingly dismissed that application today. 13. The learned Counsel relies-on the decision in Krishnan Nair & Others v. Abdu & Others ( 1964 KLT 94 ) in support of his proposition that the right of resumption under S.15 is personal to the landlord and the proceedings abate on his death. I do not find any support for the proposition in the decision cited. That was a case relating to the rights of a person who granted a melpattom for relief under S.11A of the Kerala Agriculturists Debt Relief Act 31 of 1958. The relief as per the terms of the Section itself is only to the person who granted the melpattom. Under those circumstances, a Full Bench of this Court held that the right conferred by the special statute as per S.11A was only to the person who granted the melpattom, and such right will not be available to the alienees or legal representatives of the grantor. Under those circumstances, a Full Bench of this Court held that the right conferred by the special statute as per S.11A was only to the person who granted the melpattom, and such right will not be available to the alienees or legal representatives of the grantor. That decision is based on the language of S.11A of Act 31 of 1958 and will have no application to the present case. 14. The learned Counsel for the tenants relies on the decision in Nageswaraswami v. Viswamndara ( AIR 1953 SC 370 ) wherein it is held that on the death of an agriculturist debtor as defined in the Madras Agriculturists Debt Relief Act 1938 his legal representatives can claim the benefits under the Act only if it is shown that they are also agriculturist debtors within the meaning of the Act. Applying the same principle the 3rd applicant and the other legal representatives of the landlord who are also landlords within the meaning of S.2(29) of the Act, having no other house or land fit for the construction of a residential building are entitled to continue the proceedings for resumption of the permissible part of the holding for the construction of a residential building for their occupation. The principle laid down in the decision of the Supreme Court in AIR 1953 SC 370 is applied to a case under the Kerala Act 11 of 1977 by a learned Judge of this Court in Madhoji v. Abdul Kunhi ( 1979 KLT 11 ). There is therefore no substance in the contention that the application abates on the death of applicants 1 and 2. Resumption is sought on behalf of all the applicants and the members of their family, none among whom having possession of any house or land for putting up a residential house for their occupation. The land ordered for resumption should therefore be fit for erecting a residential building. The Commissioner's plan and report dated 17-2-1977 submitted to the appellate authority would show that Sy. No. 3189 having a total extent of 1.06 acres and marked as plot A in the plan is a paramba suitable for the construction of a residential house. In Para.3 of his report the Commissioner has stated thus: "3. The property comprised in R.S. No. 3189 is a red coloured portion marked as plot 'A' in the plan. No. 3189 having a total extent of 1.06 acres and marked as plot A in the plan is a paramba suitable for the construction of a residential house. In Para.3 of his report the Commissioner has stated thus: "3. The property comprised in R.S. No. 3189 is a red coloured portion marked as plot 'A' in the plan. This plot 'A' which is a paramba is situated on the western side of the puthur main road. The western boundary of plot 'A' is a road running north south having a width of 10-12 feet. This road beginning from the Tharakkad-Koppam main road situated on the southern side and the paddy fields situated on the northern side of 'Plot 'A'. The northern boundary of plot 'A' is a kalam and compound and still north is the paddy fields. The southern boundary of plot 'A' is a house and compound and the eastern boundary is paddy fields. The road situated on the western side of plot 'A' also diverts and proceed to the east which is marked in the plan also reaches the Tharakkad-Koppam main road. On both the sides of this road as well as the road situated on the western side of plot 'A' there are number of residential buildings in a C line. From the appear; nee it could be seen that plot 'A' is situated in a residential area. During my visit this plot 'A' was found fenced on all the four sides. On a comparison of plot 'A' and 'B' plot 'A' is more convenient, better suited as a building site since it has better access from the road and require no filling up as like plot 'B'." From this it is clear that R.S. No. 3189 marked as plot 'A' is fit for erecting a residential building. Since I find that the choice of land for resumption by the tenant cannot be accepted for the reason that it is a double crop paddy land without any proper access and is unfit for the construction of residential building, I see no reason why the prayer of the applicants in their application for resumption of a portion of R.S. 3189 cannot be allowed. From the report of the Commissioner extracted above, it is clear that this portion of the holding is fit for the construction of a house. From the report of the Commissioner extracted above, it is clear that this portion of the holding is fit for the construction of a house. R.S. No. 3197 also on the side of the Puthur Road is reported to be a single crop wet land. This land also cannot be said to be suitable for the construction of a residential building in its present form. The total extent of R.S. 3189 is said to be 1.06 acres. The Landlords are entitled to resume 50 cents of land out of R.S. 3189 with sufficient road frontage for access to a residential building to be constructed in the plot. 15. The result is, I set aside the orders of the Land Tribunal and the Appellate Authority and order resumption of 50 cents of land in R.S. 3189 with sufficient road frontage fit for the construction of a residential building for the occupation of the applicants. The case is remitted to the Land Tribunal for the limited purpose of demarcating the 50 cents of land and to fix the compensation or solatium due to the tenants in respect of the portion to be resumed and the apportioned rent for the remaining extent of land in the holding. Such compensation or solatium that may be fixed by the Land Tribunal, shall be deposited in the Land Tribunal within thirty days from the date of the fresh order to be passed under sub-s.(2) of S.22 of the Act. C.R.P. No. 372 of 1980 is allowed as indicated above, and C.R.P. No. 1261 of 1980 is dismissed. There will be no order as to costs in both these revision petitions.