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1982 DIGILAW 117 (KER)

ADOOR P. B. SAMOOHAM v. LEKSHMI AMMAL

1982-04-06

KADER

body1982
Judgment :- 1. The question that arises for determination in this second appeal filed by the plaintiff in a suit for redemption of Ext. P1 mortgage dated 3-5-1965 and recovery of possession, is whether a mortgagee has to satisfy the court that he has been in actual continuous possession of the property for a period of not less than 50 years, immediately preceding 1-1-1970 in order to secure the benefits of S.4A (1) (a) of the Kerala Land Reforms Act, hereinafter called the Act. 2. The suit was resisted by the defendant on several grounds. Negativing the contentions raised by the defendant, a preliminary decree for redemption of the mortgage was passed by the trial court. 3. An appeal was filed by the defendant who then claimed fixity of tenure by virtue of the provisions under S.4A (1) (a) of the Act. The lower appellate court accepting the plea of the defendant that he is a deemed tenant coming under S.4A (1) (a) of the Act allowed the appeal and dismissed the suit. 4. Being aggrieved by this judgment and decree, the plaintiff, the appellant herein, filed a second appeal, S. A. No. 1042/ 73, before this Court and this Court remanded the case back to the lower appellate court for disposal afresh observing that the mere fact that Ex. P1 mortgage is of the year 1065 is cot sufficient to attract S.4A of the Act. After remand the lower appellate court held that a varamdar has no exclusive possession of the property; that the mortgagee must be deemed to have been in continuous possession and completed 50 years immediately preceding the commencement of the Act and that therefore the defendant is a deemed tenant entitled to the benefits under S.4A(1) (a) of the Act. On these findings the appeal was allowed and the suit dismissed but without costs. 5. This second appeal has been filed challenging this decree and judgment. 6. The substantial question of law that was formulated for decision on the basis of which notice was issued to the other side was: "Whether the defendant is entitled to claim protection under S.4A of Act 1 of 1964." 7. 5. This second appeal has been filed challenging this decree and judgment. 6. The substantial question of law that was formulated for decision on the basis of which notice was issued to the other side was: "Whether the defendant is entitled to claim protection under S.4A of Act 1 of 1964." 7. The learned advocate appearing for the appellant in support of the appeal contended that the trial court seriously erred in holding that the mortgagee-defendant has been in continuous possession of the suit property for more than 50 years on the relevant date; that on the basis of the documents produced on behalf of the plaintiff it is clear that the possession of the defendant was interrupted; that she got actual possession of the property only in 1107 by virtue of the delivery under Ex.P3 and that therefore it cannot be said that the defendant is a mortgagee who has been in possession of the property continuously for more than 50 years on the relevant date contemplated under S.4A of the Act. 8. The learned advocate appearing for the respondent-defendant on the other hand, strongly contended that although the suit property was cultivated on Pathivaram arrangement the mortgagee was in legal possession of the property during the period and therefore she has been in continuous possession of the property for more than 50 years and she is entitled to the benefit of the section. 9. S.4A(1)(a) reads: "4A(1). Notwithstanding anything to the contrary contained is any law. or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea, or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if (a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. or" 10. The expression used in sub-clause (a) of S.4A(I) is "holding the land" and the phrase "to hold land" has been defined under S.2 (59) to mean to be in possession of land as owner or as tenant or partly as owner and partly as tenant. or" 10. The expression used in sub-clause (a) of S.4A(I) is "holding the land" and the phrase "to hold land" has been defined under S.2 (59) to mean to be in possession of land as owner or as tenant or partly as owner and partly as tenant. "Possession" as per S 2(45) in relation to land includes occupation of land by a person deemed to be a tenant under S.4 S.4A, S.5, S.6, S 6A, S 6B, S.7, S, 7A, S.7B, S.7C, S.71), S.8, S.9, or S 10 or presumed to be a tenant under S.11. The dispute between the parties is regarding the continuous possession of the suit property; and as pointed out earlier the word "possession" has been defined under the Act. Therefore the question of possession has to be decided in accordance with the definition of "possession" under the Act. The very object of the Act is to assure security to the tillers of the land by conferring the benefit of fixity of tenure on those who actually till the land and work on the land and not to help or encourage those persons who own the land, but derives benefit out of it without actually working on the same. An equally important object of the Act is to abolish landlordism, particularly landlordism. Under the general law a mortgagee is not entitled to fixity of tenure. It is under a special provision in the Act by a legal fiction a mortgagee has been given fixity of tenure, under the conditions mentioned therein. Before a mortgagee can claim benefit under S.4A of the Act he has to strictly satisfy all the conditions mentioned thereunder. It is not disputed that for a long period the suit property was being cultivated by a varamdar under a pathi-varam arrangement. In Para.1 of the plaint in the instant suit, it has been specifically averred that the defendant filed OS. No. 64/1102 and obtained a decree against the varamdar and in execution of the said decree the suit property was taken delivery of through court in the year 1107 and from that date onwards the mortgagee has been in possession and enjoyment of the property. In Para.10 of the written statement, it has been stated that as the varamdar refused to surrender the property, a suit was filed for evicting him with arrears of pathivaram in OS. In Para.10 of the written statement, it has been stated that as the varamdar refused to surrender the property, a suit was filed for evicting him with arrears of pathivaram in OS. No. 64/1102 and in execution of the decree the varamdar was evicted and the property was taken delivery of. It is also clear from the averments made in Ext. P2, copy of plaint in OS No. 64/1102, and Ext. P3, copy of delivery kychit, that the varamdar was in possession of this property and it was only in execution of the decree, possession was recovered from him on 28-7-1107. On the basis of these facts, the counsel for the appellant argued that the mortgagee has not been in continuous possession of the property; that his possession was interrupted for a period and that he got actual possession of the property only in 1107 and therefore the defendant is not entitled to the benefit of S.4(1 )(a) of the Act. If the mortgagee got actual possession of the property only in execution of the decree in the year 1107, then it cannot be said that the mortgagee has been in continuous possession for more than 50 years on the relevant date. It was argued on behalf of the defendant-respondent that a varamdar during those days was only a licensee and not a lessee who got possession of the property and that therefore inspite of the fact that the suit property was being cultivated by the varamdar the mortgagee was retaining legal possession of the property and it cannot be said that there has been any disruption or discontinuance of possession. The mortgagee is claiming a benefit given under the Act and the rights and obligations of the parties have therefore to be worked out in accordance with the provisions of the Act. As regards the benefits conferred under the Act, a varamdar and a lessee stand on the same footing and are treated alike. Varamdar' under the Act has been defined as a person who undertakes cultivation under a varam arrangement, under S.2(60). Varam means an arrangement for the cultivation of nilam with paddy and sharing the produce made between the owner or other person in lawful possession of the nilam and the person who undertakes cultivation under such arrangement and includes the arrangements known as pathivaram, pankuvaram, etc. Varam means an arrangement for the cultivation of nilam with paddy and sharing the produce made between the owner or other person in lawful possession of the nilam and the person who undertakes cultivation under such arrangement and includes the arrangements known as pathivaram, pankuvaram, etc. The definition of possession under the Act, as stated earlier, includes occupation of land by a person deemed to be a tenant under the sections mentioned therein. During the period varamdar was cultivating the property; he was in occupation and possession of the same, although the mortgagee claimed that be was in constructive possession of the property during that period. By virtue of the definition of possession, under the Act a varamdar can claim that he has been in possession of the property till the property was delivered through court in the year 1107. If that be so, it cannot be said that the mortgagee in question was in possession of the property for a period not less than 50 years as contemplated under S.4A of the Act. Being a section creating a deemed tenancy, as in the case of similar provisions relating to deemed tenancy in the Act, emphasis should be on actual possession of the property. It is also clear from Exts. P1 and P2, as stated earlier, that the defendant came into possession of the property in the year 1107 through court delivery. It cannot therefore be said that the defendant has satisfied all the conditions referred to in S 4A of the Act to claim the benefit thereunder. It may also be noted that at the time when the matter was remanded to the lower appellate court in S. A. No. 1042/73 this Court observed that the mere fact that Ext. P1 mortgage is of the year 1065 will not per se attract S 4A and the ingredients mentioned in the section have to be positively established before the concerned transaction can be held to be within the mischief contained in S.4A of the Act. As is seen from the judgment in the said appeal, the counsel for the respondent requested that parties may be allowed to adduce fresh evidence in support of their respective case and this Court directed the respondent to make necessary representation before the lower appellate court. But no such representation was made by the respondent and no fresh evidence was let in on his behalf. But no such representation was made by the respondent and no fresh evidence was let in on his behalf. The burden of showing that the transaction in question is one coming within the purview of S.4A is on the mortgagee. The mortgagee has failed to discharge this burden. In the result, this second appeal is allowed, the decree and judgment of the first appellate court are set aside and the decree and judgment of the trial court are restored. No costs in the circumstances of the case. Allowed.