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1987 DIGILAW 243 (KER)

OUSEPH v. JOSE

1987-06-17

RADHAKRISHNA MENON

body1987
Judgment :- 1. The defendants are the appellants. 2. The suit was one for recovery of possession of the plaint schedule property. The trial court dismissed the suit. In appeal the Appellate Court held that the finding of the Land Tribunal in OA 1586/76, that the appellants are not tenants and hence they are not entitled to claim fixity of tenure, would operate as res judicata against the appellants and consequently the decree of the trial court was set aside. The Appellate Court accordingly decreed the suit. 3. The Second Appeal is directed against the judgment and decree of the lower appellate court. The questions formulated by this court read:- 1. Whether an order passed by a Land Tribunal for reference in a suit which bad ended in favour of the persons against whose contentions the Land Tribunal has passed the order would operate as res¬judicata in subsequent proceedings. 2. Whether a decision of the Land Tribunal after on an agreement between the parties settling the matter between them will operate as res judicata against the same parties is a subsequent proceedings initiated before the same Land Tribunal between the same parties regarding the same issue". 4. The first question no more is a moot question in view of the rulings of this court; Sukumaran Nair v, Kumaran Asari and others (1981 KLN 723), Kaliyanikutty Amma v. Govindan Nair (1981 KLT 560) and Ulahannan Kurien v. Ipe Thomas (1985 KLT 529). 5. The first question accordingly is answered in favour of the appellants. The second question in fact does not arise for consideration, because the Appellate Court has not dealt with the point covered by this question, It is all the more so because, such a point does not arise on the pleadings of the case. 6. The learned counsel for the respondents however, submits that, in view of the findings in Para.5 of the judgment of the Appellate Court the appeal is liable to be dismissed. The findings read: "The probability is therefore definitely In favour of the case set forth by the plaintiffs that the defendants came in possession of the property only by virtue of a varam agreement entered into with them by Rosa. The findings read: "The probability is therefore definitely In favour of the case set forth by the plaintiffs that the defendants came in possession of the property only by virtue of a varam agreement entered into with them by Rosa. Rosa had then only a life estate in respect of the plaint schedule item and by virtue of the varam agreement with her who had only a limited interest in the property, the defendants cannot claim any fixity of tenure". 7. The question arising for consideration from this finding is: "Are the defendants entitled to fixity of tenure notwithstanding the fact that the tenancy was created by a person, who at the relevant time, was having only a life interest in the land ?" 8. The question goes to the root of the case and hence is 3 substantial question of law. However, this was omitted to be formulated when notice on the questions already dealt with by me, was ordered. I am satisfied that the case involves this question also. 9. It is necessary to take note of certain essential facts in order to consider the point involved in the question. The appellants were inducted into possession in the year 1956 by Rosa who was having only a life interest in the land. There is no dispute about it. It is also admitted that the respondents are having the reversionary interest and therefore on the death of Rosa the property would devolve on them. 10. The answer to the question depends upon the construction of S.3(1)(vi), proviso to clauses (i) to (vii) of S.3(1), S.8,10 ad 13 of the Kerala Land Reforms Act and S.4, 6 and 9 of the Kerala Stay of Eviction Proceedings Act, Act 1 of 1957 (as amended by Act 30 of 1958), for short'The Stay Act'. 11. S.3(1)(vi) exempts tenancies in respect of land or buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both from the purview of Chap.2 of the KLR Act which contains provisions conferring fixity of tenure on tenants. 11. S.3(1)(vi) exempts tenancies in respect of land or buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both from the purview of Chap.2 of the KLR Act which contains provisions conferring fixity of tenure on tenants. The proviso to S.3(1)(i) to (vii) however, recognises the right of such tenants also to claim fixity of tenure provided they established that they were entitled to fixity of tenure immediately before 21st January, 1961, under any law then in force or they were persons claiming under such persons, It is in this backdrop, the dispute highlighted in the question requires to be considered. 12. The learned counsel for the appellants argues that the appellants, by virtue of the provisions contained in S.4, 6 and 9 of The Stay Act' are enabled to continue in possession of the land and cultivate the same without any threat of eviction from the landlord. It is not disputed that the appellants were continuing in possession of the land by virtus of the provisions contained in S.4 and 6 of the Stay Act, when the KLR Act came into force. 13. The question therefore is whether the right to continue in possession conferred on the appellants under the Stay Act is equivalent to the right to fixity of tenure conferred on the tenants under S.13 of the KLR Act. The Stay Act, the teamed counsel for the appellants submits, in fact confers fixity of tenure on the varamdars also. Rs in this connection made particular reference to S.9 of the Stay Act which provides that where, after the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, any person, who has acquired a right to continue in possession of, or to cultivate any land or to continue in possession of any Kudiyiruppu under the said Ordinance or under the Stay Act has been deprived of any of the aforesaid rights, he shall be entitled to apply to the court having jurisdiction in regard to a suit for eviction from the land or Kudiyiruppu, for the restoration to him of such rights and the Court shall, if satisfied after such summary enquiry as the Court deems fit, restore to him the said rights subject to all the obligations which he bad, immediately prior to such deprivation. It is thus clear, according to the learned counsel, that the right conferred on a tenant under The Stay Act was of a permanent character or of an enduring nature. 14. In support of the above argument the learned counsel cited the ruling of this court, in Madhavi v. Kanaran (1968 KLT 738). The Division Bench was considering the scope of S 43 of the Malabar Tenancy Act, 1929 with particular reference to S.3(1)(vi) and the proviso to S.3(1)(i) to (vii) KLR Act, the scope of which falls for consideration here also. S.43 of the Malabar Tenancy Act: "Notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force, or in any contract, a cultivating tenant or the bolder of a kudiyirippu shall be entitled to continue on the holding as such, although the rights of his immediate landlord of any superior landlord have been extinguished, whether by eviction or by redemption of a mortgage or otherwise, subject, however, to a liability to pay fair rent and to the provisions of this Act applicable to a cultivating tenant or the bolder of a kudiyirippu, as the case may be". 15. The object sought to be achieved by S.43 of The Malabar Tenancy Act and the object sought to be accomplished by S.6 and 9 of The Stay Act are virtually identical. The right enjoyed by a tenant under S.43 is only a right "to continue on the holding" and that right cannot be extinguished at the instance of the landlord. The said provision according to the Division Bench confers fixity of tenure on the tenants, within the meaning of the Malabar Tenancy Act. The Division Bench has held thus: "Before leaving this point we would like to refer to a further argument advanced by counsel for the appellants based on the provision in clause (vi) of sub-s. (1) of S.3 of the Kerala Land Reforms Act. This clause specifically exempts leases created by life interest holders or by other limited holders from the provision of Chap.2 of the Land Reforms Act saving fixity of tenure to tenants. It is said that this provision changed the existing law. This clause specifically exempts leases created by life interest holders or by other limited holders from the provision of Chap.2 of the Land Reforms Act saving fixity of tenure to tenants. It is said that this provision changed the existing law. And in so far as the earlier law provided for fixity in regard to leases created even by limited owners, It had become necessary to exclude the operation of this clause by enacting the proviso. That is why it is mentioned in the proviso that notwithstanding anything contained in clauses (i) to (vii) the fixity of tenure that was available on the 21st January 1961, ii saved. The only provision under which fixity of tenure could have been conferred on tenants of limited owners is that contained in S.43 of the Malabar Tenancy Act, 1929. The legislature in enacting the Land Reforms Act, 1963 apparently therefore proceeds on the basis that this type of tenants had fixity of tenure." (emphasis supplied) The above ruling of this court thus fully supports the argument of the learned counsel that the appellants are entitled to fixity of tenure. 16. The Legislature by enacting S.8 of The KLR Act has made it explicitly clear that the object with which S.6 of The Stay Act was enacted was to confer fixity of tenure on tenants including varamdars also. The varamdar who is entitled to the benefit of S.6 is one who has entered into a varam agreement with a person who is either the owner or other person in lawful possession of the land (Vide S.2(6) Stay Act). 17. The learned counsel for the respondents relying on the observations in Madhavi's case, namely "The only provision under which fixity of tenure could have been conferred on tenants of limited owners is that contained in ' S.43 of The Malabar Tenancy Act", however, submits that the argument of the appellants that The Stay Act confers fixity of tenure on tenants of limited owners, is liable to be rejected. The Division Bench has positively stated that the 'only provision' which could have conferred fixity of tenure immediately before 21st January, 1961 is S.43 of The Malabar Tenancy Act and therefore, counsel submits, it is not possible to countenance the argument of the counsel for the appellants that the appellants were enjoying fixity of tenure immediately before 21-1-1961. The Division Bench has positively stated that the 'only provision' which could have conferred fixity of tenure immediately before 21st January, 1961 is S.43 of The Malabar Tenancy Act and therefore, counsel submits, it is not possible to countenance the argument of the counsel for the appellants that the appellants were enjoying fixity of tenure immediately before 21-1-1961. This argument is devoid of merit because the above observation of the Division Bench cannot be said to be a "deliberate expression of opinion given after consideration" upon the question whether S.43 Malabar Tenancy Act is the only provision conferring fixity of tenure or whether there existed any other provision in any other Act conferring fixity of tenure on a tenant before 21-1-1961. Only an issue that was pointedly considered and disposed of would constitute a binding dicta. To put it differently only deliberate expressions of opinion given after consideration of the facts and law and not judicial opinions' by the way, which will be only a mere "aside' and not one of the links in the form of reasoning, would constitute a binding dicta. (Vide Alien, Law In the Making, VIIth edition page 261). Judged by this principle the above argument of the counsel that The Stay Act does not confer on a varamdar fixity of tenure immediately before 21-1-1961, is liable to be rejected. 18. A question immediately would arise whether the fixity of tenure conferred on tenants under The Stay Act can be treated as a right of an enduring nature. According to the learned counsel for the respondents, it is not because, the said right is conferred by a temporary enactment. The Division Bench in Madhavi's case was considering the scope of S.43 of The Malabar Tenancy Act, a permanent enactment. The principles laid down there, therefore cannot be extended to the case on hand, the learned counsel submits. The question has to be considered de hors the said principles. The right conferred on the tenant under The Stay Act is not of a permanent nature. The appellants therefore were not entitled to claim fixity of tenure immediately before the 21st January, 1961, and if that be the position, the appellants are not entitled to the benefit of S.8,10 and 13 of the KLR Act, the learned counsel argues. 19. The right conferred on the tenant under The Stay Act is not of a permanent nature. The appellants therefore were not entitled to claim fixity of tenure immediately before the 21st January, 1961, and if that be the position, the appellants are not entitled to the benefit of S.8,10 and 13 of the KLR Act, the learned counsel argues. 19. The above argument at the first blush is attractive; but, on going through the scheme of The Stay Act it could be seen that the right conferred on a tenant under The Stay Act is a right of a permanent character or of an enduring nature and in such cases the question whether that right is conferred by a temporary statute or by a permanent enactment, is of little significance. It is a fundamental principle that'if the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created" was a temporary one. (Vide State of Orissa v. Bhupendra Kumar Bose (AIR 1962 SC 945). The Stay Act though a temporary enactment, was erased from the Statute Book by repeal as is seen from S.93 of Act 4 of 1961 (Agrarian Relations Act). 20. Despite the repeal the rights or obligations acquired or incurred under The Stay Act are preserved by virtue of S.4 of The Kerala Interpretation and General Clauses Act, for short The General Clauses Act, because no contrary intention is expressed by the legislature. A varamdar whether holding under a limited owner or not should therefore be treated as one entitled to fixity of tenure immediately before 21st January, 1961. The Stay Act as already stated, has conferred fixity of tenure on varam tenants and the said right was of an enduring nature or of a permanent character. This right must therefore be treated as preserved by S.4 of The General Clauses Act. The appellants accordingly are entitled to the benefit of S.8 read with S.10 and 13 of the KLR Act. The argument that the appellants are not entitled to the benefit of the said provisions as the tenancy set up by them is one coming under S.3(1)(vi) of the KLR Act, therefore is rejected. 21. The question formulated in the course of the hearing of the appeal therefore is answered in favour of the appellants. The argument that the appellants are not entitled to the benefit of the said provisions as the tenancy set up by them is one coming under S.3(1)(vi) of the KLR Act, therefore is rejected. 21. The question formulated in the course of the hearing of the appeal therefore is answered in favour of the appellants. The appeal is allowed. The appellate court decree is set aside and the suit is dismissed.