ASSAIN v. AHAMMED KUTTY — 1986 DIGILAW 334 (KER)

Judgment :- 1. The question which arises for consideration in this Civil Revision Petition is whether a surrender opposed to S.51 of the Kerala Land Reforms Act, 1963 will be dispossession within the meaning of S.13A thereof. 2. Petitioners are the legal representatives of deceased Koyassan. He was in possession and a tenant of 1.15 acres of land in R. S. No. 399/3 of Karumarakkad Village, Vazhakkad desom. The respondent entrusted the above land to deceased Koyassan in 1126 ME. He had received a munpattom (premium) of Rs. 150/ and was to pay a rent of 125 paras of paddy per annum. In April, 1967, Koyassan was persuaded to surrender the holding to the respondent landlord allegedly on faith of a promise that it would be returned to him after cultivation for one year. The respondents not having acted in accordance with the above representation, the tenant-Koyassan filed O. A. No. 636 of 1970 on 22-6-1970 before the Land Tribunal (Munsiff), Kozhikode. The Original Applicant died on 24-5-1973 and his legal representatives were brought on record as petitioners 2 to 4. 3. In his objections before the Land Tribunal, the respondent-landlord contended that the tenant voluntarily surrendered the holding in 1966 when the respondent sent a notice for recovery of arrears of rent amounting to 460 paras and 6 edangazhies of paddy. He denied the allegation that the surrender was due to coercion or misrepresentation. It was also submitted that the application was filed as a counter blast to O. S. No. 820 of 1969, which he had filed against Koyassan, when he trespassed into a store house attached to the holding. 4. The second petitioner was examined as PW.1. He asserted in his evidence that Koyassan surrendered the holding only in April 1967 and that too on faith of as understanding that after cultivation for one year, the landlord would return the holding to the possession of the tenant. He also asserted that there were no arrears of rent at the time of such surrender. According to him, an amount of Rs. 500/ was paid towards arrears of rent on receipt of notice from the landlord and that the arrears had been fully discharged. There was practically no cross-examination of this witness on these aspects. He was examined on 31-12-1975 and his cross-examination was completed on 20-6-1976. According to him, an amount of Rs. 500/ was paid towards arrears of rent on receipt of notice from the landlord and that the arrears had been fully discharged. There was practically no cross-examination of this witness on these aspects. He was examined on 31-12-1975 and his cross-examination was completed on 20-6-1976. The respondent was examined as DW.1 and one of the mediators is alleged to have participated in the discussions to arrive at an arrangement relating to the surrender was examined as DW.2. The written statement filed by the tenant in O. S. No. 820 of 1969 was produced as Ext.B1, mainly to show that the surrender of the holding was in Kumbam 1141 ME, which corresponds to the year 1966. Ext. B2, which was produced only long after the death of the tenant-Koyassan and even after the examination of PW.1 was more than half-way through, was said to be a document evidencing the agreement of the tenant-Koyassan to voluntarily surrender the holding to the respondent-landlord. 5. The Munsiff - Land Tribunal considered all the materials brought on record before him. He found that the alleged voluntary surrender by the tenant of the holding to the landlord in 1966 was not made out, since there was no consistency relating to arrears of rent, which, according to the respondent-landlord, was the only consideration for surrender. He also held that the respondent - landlord had no definite case in his written statement about the positive assertions made by the tenant, that surrender of the holding was obtained in April, 1967. The Tribunal also found that Ext. B2 did not evidence surrender of the holding by the tenant. He refused to accept the evidence of DWs.1 and 2 because of the inherent inconsistencies in their versions and improbabilities of the defence set up by them. By order dated 30-6-1979 the Munsiff-Land Tribunal allowed the application and directed restoration of possession of the holding in favour of the petitioner. 6. The landlord filed an appeal, A. A. no. 556 of 1979 before the Appellate Authority. By its order dated 24-12-1979, the Appellate Authority allowed the appeal mainly on the basis of the decision of this Court reported in Vaisyan Sebastian v. Auqusteenju Marsal & others (1973 KLT. 475). To arrive at that conclusion, the Appellate Authority relied on Exts. B1 and B2. 556 of 1979 before the Appellate Authority. By its order dated 24-12-1979, the Appellate Authority allowed the appeal mainly on the basis of the decision of this Court reported in Vaisyan Sebastian v. Auqusteenju Marsal & others (1973 KLT. 475). To arrive at that conclusion, the Appellate Authority relied on Exts. B1 and B2. He held that the petitioners, who were tenants with fixity of tenure, could not have been dispossessed due to coercion, threat or misrepresentation. The tenants have filed this revision petition challenging the order of the Appellate Authority. 7. Counsel for the respondents submitted that the use of 'dispossession' in S.13A and 'termination of tenancy by surrender' in S.51 of the Act are significant and they cannot mean the same thing. According to him the contrast between loss of possession due to compulsion and surrender on the violation of the tenant are kept up in these provisions. He also invited our attention to the meaning of dispossession in Black's Law Dictionary Vth Edn. His further submission was that before the amendment of S.51 by Act 12 of 1966, surrender by the tenant directly to the landlord was permissible and no procedural provision as in the second proviso had been incorporated then. He therefore submitted that the surrender in this case having been effected in Kumbham 1141 (which corresponds to February March 1966) as submitted by the tenant in Ext. B1 written statement in O. S.820 of 1969 there was no contravention of S.51 of the Act involved in this case. He also submitted that the findings of fact entered by the Appellate Authority are not liable to be called in question in a revision petition under S.103 of the Land Reforms Act. 8. B1 written statement in O. S.820 of 1969 there was no contravention of S.51 of the Act involved in this case. He also submitted that the findings of fact entered by the Appellate Authority are not liable to be called in question in a revision petition under S.103 of the Land Reforms Act. 8. S.13A of the Kerala Land Reforms Act, which will hereinafter be referred to as the Act, is in the following terms: "(1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, where any person has been dispossessed of the land in his occupation on or after the 1st day of April 1964 such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land: Provided that nothing in this sub section shall (a) apply in any case where the said land has been sold to a bonafide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or (b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act. (2) Any person entitled to restoration of possession under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, apply to the Land Tribunal for the restoration of possession of the land. (3) The Land Tribunal may, after such inquiry as it deems fit, pass an order allowing the application for restoration and directing the applicant to deposit the compensation, if any, received by the applicant under any decree or order of court towards value of improvements or otherwise and the value of improvements, if any, effected on the land after the dispossession as may be determined by the Land Tribunal, within such period as may be specified in the order. (4) On the deposit of the compensation and value of improvements as required in the order under sub-s. (3), the Land Tribunal shall restore the applicant to possession of the land, if need be by removing any person who refuse to vacate the same." 9. (4) On the deposit of the compensation and value of improvements as required in the order under sub-s. (3), the Land Tribunal shall restore the applicant to possession of the land, if need be by removing any person who refuse to vacate the same." 9. O.A. No. 636 of 1970 was filed on 27-6-1974 and was, therefore, within the time prescribed in S.13A (2) of the Act. It is not in dispute that late Sri Koyassan was a tenant in occupation of the land under the Act at the time when he lost possession of the land. The only question in dispute is whether he has been 'dispossessed' of the land, and, if so, when? S. 51 of the Act reads as follows: "Notwithstanding anything contained in this Act, a tenant may terminate the tenancy in respect of any land held by him at any time by surrender of his interest therein: Provided that no such surrender shall be made in favour of any person other than the Government. Provided further that such surrender shall not be effective unless it is made in writing and is admitted by the tenant before the Land Tribunal and is registered in the office of the Land Tribunal in the prescribed manner. (2) The Government shall pay to the landlord fair rent of the tenancy surrendered to it under sub-s. (1). (3) The Government may let any land surrendered to it under sub-s, (1) to any person, as far as may be, in accordance with such rules as may be made under this Act. (4) The tenant to whom any land is let under sub-s. (3) shall pay the fair rent thereof directly to the landlord and the Government's liability under sub-s. (2) with regard to the payment of the rent of that land shall, on and from the date of induction of the tenant on such land, cease." This provision as it originally stood enabled surrender by the tenant of his interest in any land in favour of the landlord. Nor was there any proviso to S.51 (1). They were introduced only by Act 12 of 1966 on 11-11-1966. 10. Three points arise for consideration. Is the voluntary surrender by a tenant of his holding in favour of the landlord dispossession in terms of S.13A of the Act? Nor was there any proviso to S.51 (1). They were introduced only by Act 12 of 1966 on 11-11-1966. 10. Three points arise for consideration. Is the voluntary surrender by a tenant of his holding in favour of the landlord dispossession in terms of S.13A of the Act? Is such surrender by the tenant to the landlord in contravention of S.51 (1) of the Act dispossession in terms of S.13A? When does the prohibition contained in the proviso become operative? 11. In the decision reported in Vaisyan Sebastian v. Augusteenju Marsal, 1973 K.L.T. 475, Gopalan Nambiar, J., as he then was, held that dispossession implies taking possession without consent of the person in possession, and therefore dispossession mentioned in S.13A did not mean a voluntary transfer of the land. It was, however, observed that it was open to the tenant, despite recitals in the documents, to prove that he had been dispossessed of the land and had not voluntarily surrendered possession of the same. Reliance was placed on the meaning of the expression "dispossession" in relation to Art.144 of the Limitation Act as explained in Pappy Amma v. Prabhakaran Nair, 1971 K. L. T. 431. The decision of a Full Bench reported in Velu v. State of Kerala, 1979 K. L.T. 759, did not have to consider the question whether a voluntary surrender was dispossession within the meaning of S.13A. Nor did this Court consider in that decision whether a surrender of possession contrary to the provisions of S.51(1) of the Act would amount to dispossession under S.13A. The decision in C. R. P. No. 2975 of 1976 by a Division Bench, reported in Sankaran v. Sarada, 1980 K.L.T. (S. N.) 6, Case No. 13, also did did not consider the question of surrender in the light of S.51 of the Act. 12. Will discontinuance or loss of possession for whatever reason and in whatever manner not be dispossession which will entitle a tenant to the benefits of S.13A of the Act? We are of the opinion that dispossession can mean discontinuance or loss of possession as well. Counsel for the respondent is right in his submission that the element of compulsion is absent in surrender. He may perhaps be right also in his further submission mat, ordinarily, dispossession may involve that element. But we have to understand the expressions used in the statute in its context and setting. Counsel for the respondent is right in his submission that the element of compulsion is absent in surrender. He may perhaps be right also in his further submission mat, ordinarily, dispossession may involve that element. But we have to understand the expressions used in the statute in its context and setting. Voluntary surrenders by tenants were permitted up to the enactment of Act 12 of 1966. Way were restrictions imposed on such surrenders by Act 12 of 1966? Why was it provided that such surrenders should be only to the Government ? Why was it enacted that such surrenders should be only is writing admitted by the tenant and registered with the Land Tribunal? Obviously the legislature was trying to remedy a defect in the working of S.51 of the Act. It was trying to plug loopholes in the Act by providing that the tenant shall not surrender his interest in the land to the landlord and except to the Government and except in writing admitted by the tenant and is registered in the office of the Land Tribunal in the prescribed manner. Obviously, surrender by and dispossession of tenants were considered as situations which required immediate legislative intervention, apparently since tenants were being dispossessed allegedly under direct voluntary surrenders which were permissible under S.51 of the Act as it stood then. The obligation that such surrender of lands should be only to the Government, that it should be in writing admitted by the tenant and registered in the Land Tribunal and that the Government shall pay fair rent of the tenancy to the landlord S. 51(2) of the Act and in respect of abandonment of tenancies S. 51A (3) of the Act and the prohibition in S.51B of the Act, that the landlord should not enter on surrendered or abandoned land, except on pain of prosecution for contravention of S.6 of the Kerala Prevention of Eviction Act, 1966 are definite pointers in this regard. The principle in Hoyden's case, (1584) 17 E. R.637, is operative in this situation. The state of the previous law, the defect or mischief therein, which the legislature wanted to remedy and the true reason of the remedy provided by the amendment are determinative of the intention of the legislature. The principle in Hoyden's case, (1584) 17 E. R.637, is operative in this situation. The state of the previous law, the defect or mischief therein, which the legislature wanted to remedy and the true reason of the remedy provided by the amendment are determinative of the intention of the legislature. Thereafter, the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy 'pro privat commodo' and to suppress subtle inventions and evasions for the continuance of the mischief and to add force and life to the cure and the remedy according to the intent of the makers of the Act, pro bono publico. In an almost similar situation, where there was doubt as to the meaning of words used in a statute, the Supreme Court held in Workmen v. DTE Management, AIR 1958 SC 353, that "The words of a statute, when there is a doubt about their meaning are to be under stood is the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and that object to be attained." (Maxwell, Interpretation of Statutes, 9th Edn. p. 55). To the same effect is a catena of decisions of the Supreme Court some of which are State of U. P. v. C. Tobit, AIR 1958 SC 414, and Siraj-Ul-Haq v. S. C. Board of Waqf, AIR 1959 SC 198. So understood we have no hesitation in holding that discontinuance or abandonment or loss of possession whether forced upon or extracted from the tenant as surrender were meant to be treated alike. 13. It appears to us that the provisions of S.51B of the Act are very important in this regard. It provides: "If any landlord enters into possession of any abandoned land or any land which has not been surrendered in accordance with provisions of S.51, he shall be deemed to have contravened the provisions of S.6 of the Kerala Prevention of Eviction Act, 1966. It provides: "If any landlord enters into possession of any abandoned land or any land which has not been surrendered in accordance with provisions of S.51, he shall be deemed to have contravened the provisions of S.6 of the Kerala Prevention of Eviction Act, 1966. and shall be punished accordingly." This indicates that even in the case of voluntary surrender, the landlord renders himself liable to penalty if he enters into possession, notwithstanding the consent of the tenant. Evidently, the consent of the tenant was meant to be and has been so canalised as to provide for surrender only in one manner to the Government as provided in the proviso to S.51 of the Act. Surrender of any interest in tenancy by the tenant in any other manner or to any person other than the Government is expressly prohibited. In the context of the provisions referred to above, viz., S.51, S.51A and S.51B of the Act, we are of the opinion that dispossession in S.13A of the Act and surrender under S.51 of the Act are put on the same footing; both result in the same consequences in effect as far as the landlord is concerned. The laid is liable to be restored to the tenant in the former and the landlord is precluded from entering into possession of the land even on surrender by the tenant in the latter. The consent given by the tenant is immaterial in either case. We are, therefore, of the opinion that the surrender in contravention of S.51 of the Act is liable to be treated as the same as dispossession under S.13A of the Act. We are, therefore, of the opinion that Vaisyan Sebastian v. Augusteenju Mar sal, 1973 K.LT 475, to the effect that voluntary surrender would not be dispossession under S.13A of the Act was not correctly decided. We should, however, note that in Vaisyan Sebastian's case (supra) this court had observed that a contesting party is free to lead evidence to show that the surrender was not voluntary. 13. A The only basis of the decision of the Appellate Authority was the assumption of law that voluntary surrender would not be dispossession under S.13A of the Act but for this misdirection in law, the Appellate Authority would not have allowed the appeal. 13. A The only basis of the decision of the Appellate Authority was the assumption of law that voluntary surrender would not be dispossession under S.13A of the Act but for this misdirection in law, the Appellate Authority would not have allowed the appeal. Even assuming that Vaisyan Sebastian's case was correctly decided, the Appellate Authority had to consider whether the tenant had not succeeded in proving that the so-called surrender was not voluntary. That aspect has been completely omitted from consideration by the Appellate Authority. The order of the Appellate Authority is, therefore, liable to be set aside. 14. The Land Tribunal considered the evidence before it and came to well reasoned conclusion that the dispossession of the tenant was in 1967 and the same was not voluntary. If we go by Ext. B2 which was produced by the respondent-landlord himself, the tenant was to continue in possession even after the agreement until the puncha crop which was raised by the tenant was harvested. It is true that in Ext. B1 written statement of the tenant in O.S. No. 820 of 1969, there was an admission that the surrender was in Kumbham 1141 corresponding to 1966. But the documentary evidence adduced by the landlord definitely indicated that the tenant continued in possession even on the date of Ext. B2 in 1967. The Land Tribunal also noted that the only consideration for surrender according to the landlord was arrears of rent amounting to 460 paras 6 edangazhies of paddy, but his evidence as DW-1 was that the arrears of rent was Rs. 700/-, the whole of which he had recovered. An Appellate Authority has jurisdiction to reappreciate the evidence and come to a different finding altogether. But that power is exercised only if it is found that the original authority was wrong and not because it was not right. 700/-, the whole of which he had recovered. An Appellate Authority has jurisdiction to reappreciate the evidence and come to a different finding altogether. But that power is exercised only if it is found that the original authority was wrong and not because it was not right. We need only refer to the celebrated observation of Lord Goddard C. J., in 1949 (1) ALL ER 256, which was quoted with approval by M. S. Menon, C. J., in the Division Bench decision reported in Cannanore District Motor Transport Employees Co-operative Society Ltd. v. Malabar Public Conveyance, 1962 KLT 446: "There is given here as unrestricted right of appeal, and, if there is an unrestricted right of appeal, it is for the court of appeal, in this case the metropolitan magistrate, to substitute its opinion for the opinion of the borough council That does not mean to say that the court of appeal ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right." 15. We hold that the Appellate Authority misdirected itself in interfering with the finding of the Land Tribunal that there was no surrender of the land by the tenant in 1966 as claimed by the landlord respondent. 16. The provisions of S.103 of the Act enable this court to consider whether the Appellate Authority in deciding an appeal against the order of the Land Tribunal had erroneously decided or failed to decide any question of law. The inter-action of S.51 and 13A of the Act is a question of law which the Appellate Authority has failed to decide. In the result, this Civil Revision Petition is allowed with costs. The order of the appellate authority is set aside, the appeal-AA. 556 of 1979 filed by the respondent before the appellate authority is dismissed, and the order of the Land Tribunal in O.A. 636 of 1970 is restored. Allowed.